Foundations of law

Constitutional and
administrative law
S.A.deSmith
 MINISTRY OF LAW
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Constitutional
and Administrative Law
Third Edition

S. A. de Smith

This edition revised by

Professor Harry Street
Barbara de Smith
Rodney Brazier

Penguin Books
Penguin Education

Foundations of Law
General Editor : Harry Street

Constitutional and Administrative Law

S. A de Smith
 Penguin Books Ltd,
Harmondsworth, Middlesex, England
Penguin Books, 625 Madison Avenue,
Mew York, New York 10022, U.S.A.
Penguin Books Australia Ltd,
Ringwood, Victoria, Australia
Penguin Books Canada Ltd, 2801 John Street,
Markham, Ontario, Canada L3R 1B4
Penguin Books (N.Z.) Ltd, 182-190 Wairau Road,
Auckland 10, New Zealand
First published 1971
Second edition 1973 «
Reprinted with minor revisions 1974
Reprinted 1975
Third edition 1977
Copyright ©
the Estate of S. A. de Smith, 1971, 1973, 1977

Made and printed in Great Britain by

Richard Clay (The Chaucer Press) Ltd,
Bungay, Suffolk
Set in Monotype Times

Except in the United States of America,

this book is sold subject to the condition
that it shall not, by way of trade or otherwise,
be lent, re-sold, hired out, or otherwise circulated
without the publisher’s prior consent in any form of
binding or cover other than that in which it is
published and without a similar condition
including this condition being imposed
on the subsequent purchaser
 5 8

Contents

Preface 11

Part One
General Foundations 13

1 Constitutions 15
What are constitutions ? 1

What goes into constitutions ? 1

A written constitution for Britain? 24

Aspects of classification 28

2 The British Constitution 32

Characteristics 32
The rule of law and the separation of powers 35
Sources of British constitutional law 39
Conventions of the constitution 44

3 Ultimate Authority in Constitutional Law 63

Parliamentary sovereignty 63
Foundations of the constitutional order 64
Parliamentary sovereignty surveyed 69
Possible legal limitations on parliamentary sovereignty 72
What is an Act of Parliament? 81
Practical limitations on the legislative power of Parliament 90

Part Two
The Executive 95

4 The Crown and the Royal Prerogative 97

Constitutional monarchy 97
Legal rules affecting the monarchy 108
The royal prerogative 113
The prerogative today: external affairs 124
 5 The Privy Council 137

6 Cabinet and Prime Minister 144

Background 144
Executive power: a conventional approach 146
Executive power: some correctives 155
Cabinet committees: a note 160
Ministerial responsibility 161

7 Ministers, Departments and Civil Servants 173

Central government 173
Matters historical and legal 179
The civil service 180
8 Constitutional Position of the Armed Forces 195
Structure and status 195
Military lav/and the civil law 198
Superior orders 201
Civilians and courts-martial 202

9 Public Boards and Nationalized Industries 204

Government and quasi-government bodies 204
The role of government in the mixed economy and the
welfare State: a brief sketch 205
Nationalized industries: legal and constitutional issues

Part Three
Parliament and Legislation 219

10 Parliament: Background and Framework 221

Evolution 221
Some basic rules 223
The role of Parliament 227
11 The House of Commons: Elections and Members 232
The modern electoral system 232
Members 241
Electoral campaigns 249
Election petitions 251

12 The House of Commons: Functions and Procedure 253

Introduction 253
Parties in the House 257
Business of the House 260
 Legislation 262
Legislative procedure 265
Financial procedure 273
Scrutiny of policy and administration 280

13 The House of Lords 286

Prologue 286
Composition 287
Functions and work of the House 291
Disagreements between the two Houses 294
Judicial duties of the Lords 298
Approaches to reform 300

14 Parliamentary Privilege 303

General 303
Privileges of the Commons 304
Parliamentary privilege and the courts 315

15 Subordinate Legislation 320

General 320
Delegated legislation: functions and fears 324
Statutory instruments 329
Safeguards 331

Part Four
Justice, Police and Local Government 343

16 The Administration of Justice 345

Courts 345
Independence of the Judiciary 353
The Executive and the administration of justice 364

17 Police 370
Status and functions 370
Organization and control 373
Complaints 376

18 Local Government: A
Sketch 379
Structure and functions: the new system 379
Members, meetings, committees and officials 381
Finance 390
Local authorities and the courts: in brief 394
Central control reviewed 398
 1

Part Five
Civil Rights and Freedoms 403

19 Citizens, Aliens and Others 405

Background 405
Commonwealth citizens immigration restrictions 1962-73 409
:

Immigration restrictions from 1973 41

Status of non-patrials within the United Kingdom 416
Deportation 417
Appeals 420
Allegiance and protection 423
Fugitive offenders 427
Race relations legislation 431
Sex discrimination 436

20 Personal Freedom 439

Fundamental rights 439
Legal restraints on the liberty of the person 443
Habeas corpus and other remedies 452
Privacy and search 456

21 Freedom of Expression 461

22 Freedom of Assembly and Association 484

Association 484
Meetings and processions: prior restraints and preventive
measures 485
Offences and police powers 490

23 National Emergencies 499

Civil disorder 499
War 504
Disruption of essential services 506

Part Six
Administrative Law 509 .

24 Administrative Law: Introduction 511

Definition and scope 511
Decisions 514
In general 522

25 Tribunals and Inquiries 523

In general 523
 Special tribunals 528
Inquiries and land use 541
26 Judicial Review of Administrative Action: Principles 548
Going to court 549
Ultra vires and excess of jurisdiction 550
Law and fact 559
Natural justice 561
Discretionary powers 574

27 Judicial Review of Administrative Action: Remedies 583

28 Crown Proceedings 598

Contracts 598
Tort 602
Procedure and evidence 606

29 Redress of Grievances: The Ombudsman and Others 614

Forms of redress against official conduct 614
The Parliamentary Commissioner for Administration 617

Part Seven
Commonwealth Affairs 625

30 The United Kingdom and Commonwealth 627

The United Kingdom 627
The Channel Islands and the Isle of Man 634
Devolution 639
The Commonwealth 640

Appendix
European Community Institutions: A Note 659

Table of Cases 665

Table of Statutes 685
Index 705
 Preface

The tragic and premature death of Stanley de Smith confronted me as

general editor of the series to which this work belongs with the daunting
task of organizing the preparation of this third edition. The author had
recognized that reprinting the sold-out second edition could only be a stop
gap and had begun work on the third edition. His widow, Barbara, had
been helping her husband and willingly fell in with my proposal that she
should cooperate with me. I was fortunate, too, that my colleague, Rodney
Brazier, also agreed to participate, and the three of us have accordingly
acted as joint editors of this new edition.
There have been very many changes in constitutional and administrative
law in the last three years. Events of constitutional importance like the
procedure for electing Sir Harold Wilson’s successor, the dismissal of Mr
Whitlam, the problems of minority government in 1974, and the E.E.C.
referendum with its impact on collective Cabinet responsibility are
examined and their implications assessed. The possible happenings of
tomorrow in the field of devolution are examined to the extent that they
have so far progressed.
Parliament has kept us busy with the Race Relations Act and the Police
Act. The reorganization of local government has had to be digested, and
so have the Crossman Diaries and their litigious aftermath. The courts
have been active with decisions like British Railways Board v. Pickin in
constitutional law and a string of appellate decisions on judicial review
of administrative action, including important ones like the Tameside,
Laker and Gouriet cases. The enthusiasms of Mr Blackburn, Mrs White-
house, the Sunday Times and others have ensured a steady flow of new
cases dealing with civil liberties.
When 1 first discussed this book with the late author some nine ye-?” 0
ago, the agreed aim was to provide an accurate, up-to-date account of
those areas of constitutional law which were of contemporary significance.
The emphasis was on today’s problems rather than on constitutional
to be
whether that coincided with the balance of existing
history, regardless of
books. As the author explained in his prefaces, he would interpose per-
sonal expressions of opinion where he felt sufficiently moved or the

Preface 11
circumstances warranted In view of the success achieved by the author,
it.

we have and like him have succeeded

naturally tried to follow his precepts,
in keeping the book down to a reasonable size: it is, in fact, shorter than
the edition which it supplants. Our task has, of course, been made easier
by the masterly way in which Professor de Smith traversed for students
the wide territories of constitutional law. We have attempted to build on
that remarkable mature skill in marshalling and presenting an immense
amount of detailed information which he displayed throughout.
We have endeavoured to state the law and recount constitutional
developments as of February 1977.
Harry Street

12 Preface
 Part One
General Foundations

The first chapter asks some elementary questions and indicates answers.
What do we mean by a constitution ? What matters are dealt with in the
constitutions of other countries ? Why have we no written constitution
in Britain? In what circumstances (if any) might we adopt one? How
can constitutions be classified ?
Chapter 2 outlines the main features of the British constitution today.
It touches very briefly on the theory of the rule of law and the doctrine
of separation of powers. It reviews the sources of British constitutional

law. And then it goes on to deal at some length with conventions of the
constitution, those rules of political practice which have played such an
important part in the British system of government. How do they differ
from rules of strict law ? In what sense are conventions ‘ rules ’ ? How does
one identify conventions ? It is easier to ask some of these questions than
to answer them. A number of individual conventional rules will be
examined in later chapters. In this chapter we give a preliminary indication
of the potential impact of European Community law on the constitutional
law of this country.
In chapter 3 we ask still more awkward questions. In other countries
the constitution is the supreme law. In this country Parliament is

traditionally supposed to be entitled to pass any law whatsoever on any

subject whatsoever. What makes a constitution valid and supreme?
Why is (or was) Parliament sovereign ? How do judges behave in other
countries when a revolutionary change of government takes place and the
new rulers act in ways unauthorized by the constitution ? This is a basic
question about the foundations of a legal system. Can Parliament’s
law-making authority ever be restricted ? If so, how ? Is it really entitled
to legislate for any part of the world ? Can it effectively limit its own
powers in any way? Have its powers been limited by Britain’s accession to
the European Communities and the enactment of the European
Communities Act 1972? Here we take a closer look at Community law
doctrine and its possible repercussions on the legal concept of
parliamentary sovereignty. Perhaps we are in a transitional phase, where
the concept is in the process of being undermined. We do not yet know
 '

\ whether or when United Kingdom courts will change their attitude .

v]
“
towards Acts of Parliament. , „ ,

The suggested answers to quite a lot of the questions posed in this *

I
- chapter are somewhat speculative. Students may find parts of it difficult.
They should not be despondent. The subject-matter of later chapters will
be more down-to-earth. Anyone who feels so inclined can read
chapter 3 again, and more closely, at a later stage. But what is said about
Community law needs to be noted. Problems posed by the new system of
’
which we are now a part will recur at different levels in other chapters
"
where some prior understanding of the relationship between United
-

-
Kingdom law and Community law will have to be taken for granted. *

;. /There will be a short statement of the constitutional structure of the - 1

**- Communities in an Appendix.

- “r : :
ri4
-
’

; v
*
*

*i14 General Foundations

 Chapter 1
1
Constitutions

What are constitutions?

When de Tocqueville observed that the British constitution did not exist,
few people took his remark at its face value. Lawyers have not been
deterred from writing books about constitutional law, nor are books by
non-lawyers on the British constitution in short supply. Dicey’s assertion
that we had no administrative law in Britain was a more serious matter;
it frightened writers away from and only
the subject for over forty years,
in the last decade or so has the practising side of the legal profession come
to regard administrative law (or the law relating to public administration)
as a living reality, wholly worthy of study. But the study of the law of the
constitution earned respectability long ago. " •*' '

In the vast majority of modem states or political societies there exists

an identifiable document, or a group of documents, called the constitution,
embodying a selection of the most important rules about the government
of the country. Books on constitutional law in these countries are usually
commentaries on this special document or group of documents - on the
historical circumstances in which a constitution came to be adopted* on
the political and philosophical assumptions underlying it, on the special
position of authority enjoyed by the constitution within the legal order,
on the individual provisions of the constitution a’nd their implications, on
their amendment, interpretation and practical operation. In so far as these
commentaries stray beyond the bare text of the constitution, they show
that the terms ‘constitution’ and ‘constitutional law’ can be and often are
used in a wider sense, to describe matters which are thought to be of ‘con-
stitutional* importance - importance, that is to say, in understanding
what lies behind and beyond the ‘constitution’, so that the constitution
can be understood as a central feature, but not the sole feature, of the
rules regulating the system of government. If the term ‘constitution’ thus
acquires a penumbra of ambiguity, this is not a matter of any great
consequence.

1.Several of the points made in this chapter are set out with exemplary lucidity by
Sir Kenneth Wheare m his Modern Constitutions (2nd edn).

Constitutions |JB
 And so studies of constitutional law are likely to range into history,
political and and legislative and political
legal theory, political science,
where courts have power to inquire into the
practice. In those countries
compatibility of legislative and administrative action with the constitution,
books and lecture courses on constitutional law will include a lot of
material about judicial review. This is the position in, for example, the
United States, Canada, Australia and India. In the United States today it
would be absurd to consider the meaning of constitutional expressions
such as ‘freedom of speech’, ‘due process of law’, and ‘the equal protec-
tion of the laws’, except by scrutinizing recent judicial interpretation,
which happens to be far more significant than what the framers of the
constitution and its amendments meant or thought they meant by those
expressions. Similarly, in Canada the general power of the Federal Parlia-
ment to make laws for the ‘peace, order and good government of Canada 2 ’

loses its deceptive simplicity when viewed in the context of restrictive

judicial decisions. In Australia the meaning of the important constitutional
guarantee of absolute freedom of inter-state trade and commerce has been
moulded by the High Court in a series of leading cases by a process of
unavowed judicial legislation.
Quite often the text, or much of the text, of a constitution is not intended
to be taken literally. It sets out the framework of government, postulates
how it ought to operate, and makes declarations about the purposes of the
State and society and the rights and duties of citizens but no real sanction
;

is provided against violation of particular provisions of the constitution.

Much of the constitution is ‘programmatic’, an affirmation of dogma or

of objectives to be realized one fine day 3 In such countries the study of
.

constitutional law may be hardly distinguishable from jurisprudence or

political theory; the books on the subject can still be bulky and verbose.
Although written constitutions differ widely in their purposes, form and
content, they will normally be found to have two characteristics in com-
mon. They will be the fundamental law of the land; and they will be a
kind of higher law. They will be fundamental law in so far as they designate
the principal organs of government and invest them with authority; thus,
they will constitute and define the Legislature, and state what is the scope
of its law-making power and the procedure for exercising that power. In
other words, they will be the law behind the law - the legal source of
legitimate authority. They will also, as a rule, be a higher form of law, in
that the law (or some of the law) set out in the constitution will be hier-
archically superior to other laws and will not be alterable except by a
specially prescribed procedure for amendment. In a number of countries,

2. British North America Act 1867, s. 91.

3. See, for example, J. F. Triska (ed.). Constitutions of the Communist Party States.

1 6 General Foundations
courts have jurisdiction to pronounce laws inconsistent with the consti-
4
tution to be invalid In order to escape such a fate, a law will have to be
.

properly adopted as a constitutional amendment; and the same procedure

will normally apply to a measure designed to ‘amend’ the constitution by
way of addition without subtraction. Procedures for constitutional amend-
ment widely from one another, but they usually require the amending
differ
measure to be passed by special majorities in the Legislature, or to be
submitted to the people voting at a referendum, or both. It is perfectly
possible, and is indeed not uncommon nowadays, for various provisions
of a constitution to be alterable in different waysj some may be alterable
by an ordinary legislative enactment, and others ‘entrenched’ at various
levels against legislative encroachments, depending on the degree of
5
importance originally attached to particular parts of the constitution .

In West Germany and Cyprus, certain constitutional provisions were

expressed to be unalterable by any means. To this extent the constitutions
of those countries were, of course, rigid. But the rigidity or flexibility of
written constitutions cannot be ascertained merely by comparing pro-
cedures for constitutional amendment. A constitution containing a cum-
bersome procedure for its own amendment may in fact be very flexible if
there is no effective opposition to the party in power; and the majority of
modern states have authoritarian regimes. The constitution of Ceylon (now
6
the Republic of Sri Lanka ), on the other hand, remained remarkably
stable for nearly twenty-five years, although most or all of it could be
changed, quite simply, by a bill commanding the support of two-thirds of
the members of the House of Representatives. The main reason for its
durability was the existence of a volatile multi-party system, in which
governments were preoccupied with sustaining their own position in a
usually unsuccessful attempt to avoid defeat at the next election.
As every beginner knows, the United Kingdom has no ‘constitution’
in the narrower sense of the term. There is no document or group of
documents called the British constitution. But since Britain has a regular
system of government, with a complex of rules defining the composition,
functions and interrelationship of the institutions of government, and
delineating the rights and duties of the governed, Britain does have a

4. Judicial review of the constitutionality of legislation is not accepted in a number

of other countries (for example, France). Unconstitutional legislation may consequently
be deemed to be valid for the purposes of application and enforcement in the courts.
The only remedy against this usurpation of legislative power will be political.
5. See, for example, Constitution of Jamaica (S.1 1962, No. 1550, Schcd.), s. 49.
.

6. The republican constitution was adopted in 1972 by a Constituent Assembly, not

following the procedure for amendment prescribed by the independence constitution.
This was a deliberately contrived ‘breach of legal continuity*, designed to give Sri
Lanka (Ceylon) an ‘autochthonous*, or home-grown, constitution. See p. 65.

Constitutions 17
 constitution and a body of constitutional law, if these terms are used in a
broader sense. Even if Britain did have a formal written constitution, this
would not necessarily determine the boundaries of the study of British
constitutional law, for many rules of constitutional interest would not be
found in the written document itself. In the absence of such a document,
an author’s selection of topics has to be conditioned by what he personally
regards as relevant or instructive.
Why, then, have we no ‘constitution’? Why does nearly every other
country in the world have one? What topics would probably be dealt with
in a constitution for Britain, and why? Before trying to offer answers to
these questions, one must touch upon a preliminary problem. Some
English lawyers will say that to adopt a written constitution would be
pointless. It would be pointless because such a constitution would have
no higher sanctity than an ordinary Act of Parliament it could be amended
;

or repealed the next day by another Act of Parliament, just as if it were

an Act for the licensing of rat-catchers. For it is (or has been) a funda-
mental rule of British constitutional law that the United Kingdom Parlia-
- ment is incapable of restricting its own omnipotence.
Now, the question of parliamentary sovereignty raises some extremely
difficult issues, which we examine in chapter 3. For example, how
shall
‘fundamental’ are the rules about the omnipotence of Parliament? For
the moment it is enough to say that an orthodox opinion does not become
unassailable merely because it is widely held by distinguished authorities.

What goes into constitutions?

Constitutions are primarily about political authority and power7 - the
location, conferment, distribution, exercise and limitation of authority and
power among the organs of a State. They are concerned with matters of
procedure as well as substance. More
often than not they also include
explicit guarantees of the rights and freedoms of individuals. And some-
times, as noted, they incorporate ideological pronouncements -
we have
principles by which the State ought to be guided or to which it ought to
aspire, and statements of the citizens’ duties.
There is no pre-ordained stereotype of an ideal constitution. The-form
and content of a constitution will depend first on the forces at work when
the constitution is established and amended, secondly on common-sense
considerations of practical convenience, and thirdly on the precedents

7. A club, a trade union and a students* union will also have ‘constitutions*. The
forms of power with which such constitutions are concerned are not ‘political’, unless
politics are understood in a very wide sense or the organization comes to be dominated
in practice by political activity in the normal sense ol the term.

18 General Foundations
 who draw up the constitution.
available to the politicians and their advisers
The and third points may be particularly important. For instance,
first

there was a very big difference between Ghana’s independence consti-

tution of 1957 and its republican constitution of 1960. The 1957 consti-
tution was incorporated in an Order in Council drafted in London after
an Independence Conference. The 1960 constitution was drafted in Ghana.
The former was a ‘Westminster model’ type of constitution, an agreed
compromise package-deal 8 embodying a parliamentary executive and
various safeguards for individual and minority group interests. The latter
was made to suit the requirements of Dr Nkrumah alone; it provided for
a presidential form of government and included no significant safeguard
for the interests of individuals or groups which might have resisted the
pretensions of the Convention People’s Party. In 1964 the constitution
was further amended to make Ghana a single-party state. Clearly the
changes made in 1960 and 1964 were strongly influenced by constitutional
precedents set in neighbouring French-speaking African states. After the
fall of Nkrumah
in 1966, local opinion swung away from single-party
authoritarianism, and the constitution adopted in 1969 included a wide
range of devices designed to prevent serious abuses of legislative and
executive power. To put the matter in another way, Ghana had reverted,
at least for the time being, to ‘constitutionalism’ or the idea of limited
government. But in less than three years the regime was overturned by a
military coup Constitutions in developing countries are apt to prove frail
.

structures, mainly because so much value is attached to the acquisition and

retention of political power. Changes of government are likely to be
usurpations of power, followed by the suspension or supersession of the
constitution.
In order to give an impression of what matters are dealt with in modern
written constitutions, we shall glance very briefly at some features of the
constitutions of three independent countries - Australia (1900), Cyprus
(1960) and Tanzania (1965),

Australia

The Commonwealth of Australia Constitution Act 1900 was passed by

the United Kingdom Parliament, acting, in effect, as the agent of consti-
tution-makers in Australia. It provided for the establishment of an ‘indis-
soluble Federal Commonwealth under the Crown’, consisting of six states;
all of them were formerly self-governing colonies with their own consti-
tutions. Section 9 of the Act of 1900 set out the Constitution of the
8. See generally, Y. P. Ghai and J. P. W. B. McAuslan, Public Law and Political
Change in Kenya , chs. 5, 13.

Constitutions 19
 Commonwealth of Australia; it had 128 sections; the six states retained
.their own constitutions, but gave up some of their powers to the new
entity. Included in the Commonwealth are certain territories (for example,
the Australian Capital Territory) which are not states and are not fully
self-governing. Under the constitution, certain powers are given exclusively
to the Commonwealth; a number of other powers are allocated con-
currently to the Commonwealth and the states, with the proviso that a
valid Commonwealth law shall prevail over a state law to the extent that
they are inconsistent with one another; the undistributed residuum of
power belongs to the states. Law-making powers can be distributed in
various ways in a federation - Australia broadly followed the United
States pattern; Canada, India and Malaysia all have their different arrange-
ments - but since a federal system is one in which central and regional
9
1
bodies each have an exclusive area of competence, the ‘forbidden zones
9
must be demarcated in an authoritative document. And since the regions
(states,provinces or what you will) are not willing to be totally sub-
ordinated to the central (or federal) authorities - otherwise they would
have accepted a status akin to local authorities in a unitary system - their
sphere of autonomy must be protected against encroachments. The consti-
tution therefore provides a special procedure for amending its most
important provisions. A proposed constitutional amendment becomes
law only if it is approved by a majority of voters at a referendum held
throughout the Commonwealth and by a majority of voters in a majority
(i.e. at least four) of the states; an amendment diminishing certain consti-

tutional rights of a state or altering its boundaries needs the approval of

the electors in that state. The general amending procedure is not cumber-
some or rigid compared, for example, with the procedure for constitutional
amendment in the United States, where an amendment normally has to
9
obtain two-thirds majorities in both Houses of Congress and then be
ratified by three-fourths of the state legislatures. But the Australians tend
to be a conservative people, and only five formal constitutional amend-
ments have been approved in over seventy years.
The constitution is divided into chapters. The first deals with the Parlia-
ment, the second with the Executive Government, and the third with the
Judicature; there are five others, dealing with such questions ^as new
states, financial relations and constitutional amendment. There is no com-
prehensive bill of rights, though there are a few individual guarantees that
could have been put into such a chapter; for instance, the acquisition of
property for federal purposes must be ‘on just terms’ and there is a section
'

on freedom of religion,
9. See generally Sir Kenneth Wheare, Federal Government (4th edn); Geoffrey
Sawer, Modern Federalism*

20 General Foundations
 A few aspects of the constitution are worth noting:
1. The constitution vests executive power in the Queen and it is exercisable
by the Governor-General as her representative. He is to be advised by a
Federal Executive Council, comparable to the Privy Council in the
United Kingdom. Reference is made to Ministers, but not to the Cabinet
or the Prime Minister; as in the United Kingdom, they are creatures of
constitutional convention (that is to say, binding constitutional usage),
not of strict law. Nothing is said about the responsibility of Ministers to
Parliament, though one conventional rule in the United Kingdom is
crystallized in constitutional terms: a Minister cannot hold office for more
than three months unless he is or becomes a member of one or other
House. Certain other conventional rules in the United Kingdom find
expression in the text of the Australian constitution - for example, that
money bills and resolutions have by the Executive - but
to be introduced
in general the constitution preserves the quaint dichotomy of strict law and
constitutional convention which, as we shall see, is a distinctive feature of
British constitutional law.

2. The chapter on Parliament vests the legislative power of the Common-

wealth (subject, of course, to the terms of the constitution) in the Queen,
the House of Representatives and the Senate. Naturally it deals with such
matters as the royal assent, the maximum duration of a House of Repre-
sentatives, the tenure of office of senators, and what is to happen when the
two Houses are in disagreement with one another. These are basic issues.
But other matters are dealt with only in certain aspects, or ‘until Parlia-
ment otherwise provides’, or are omitted altogether. Thus, the constitution
lays down rules that each original state shall have equal representation in
the Senate, but enables Parliament to increase the size of the Senate. It
provides that, as nearly as practicable, the House of Representatives shall
be twice the size of the Senate. There are entrenched provisions for dis-
qualification for membership of Parliament; presumably these were
thought to be particularly important. The basic qualifications of members
are laid down, but they may be altered by Parliament ; and so on.

3. The chapter on the Judicature vests the ‘judicial power of the Common-
wealth’ in federal courts and ‘such other courts as the Parliament vests
with federal jurisdiction’, and provides for the method of appointment and
tenure, and security of remuneration, of federal judges. It goes on to out-
line the appellate and original jurisdiction of the High Court of Australia.
These provisions have been greatly amplified by legislation over the years.
But, as they stand in the constitution, they have given rise to some excruci-
atingly difficult problems of interpretation. And the courts have read imu

Constitutions 21
them implications based on the doctrine of separation of powers, 10 a
doctrine which has nothing to do with the distribution of powers between
the central and regional authorities in a federation but which has a long
and tortuous history behind it.

Cyprus

The constitution under which Cyprus became independent in 1960 was a

most extraordinary document. It was not drafted in London and owed
little to British constitutional experience or practice. It was the most rigid,

detailed and complicated in the world. Even a brief summary of its charac-
11
teristics would take us too far afield, for it contained very little of any
conceivable relevance for a prospective constitution-maker in the United
Kingdom. The constitution of Cyprus was dominated by the concept of
‘community’. Two separate peoples, the Greek Cypriots (most of whom
wanted union with Greece) and the Turkish Cypriots (determined never to
submit to Greek Cypriot majority rule and backed in their intransigence by
their brethren in near-by Turkey), lived side by side on a strife-ridden
island. The constitution was in fact largely dictated by outside forces, and
it was so formulated that on no issue of substantial importance to Turkish

Cypriots could the views of the Greek Cypriot majority prevail. And the
constitution explicitly forbade both the union of the island with another
State and the partitioning of the island.
In July 1974 mainland Greek officers of the Greek Cypriot National
Guard launched a coup d'dtat against President Makarios, who was forced
to flee from the island. A
Turkish invasion of northern Cyprus followed,
which resulted in about forty per cent of the island coming under Turkish
control as a ‘Turkish Federated State’. Archbishop Makarios was able to
return as President in December 1974, although he had no actual authority
in the Turkish occupied area.
Two features of the constitution are worth mentioning here. First,
governmental authority was divided up in a number of different ways:
between the Greek Cypriot President and the Turkish Cypriot Vice-
President; between the Council of Ministers and the House of Represen-
tatives; between the House of Representatives, on the one hand, and the
Greek and Turkish communal chambers, on the other.
Secondly, the matters dealt with in the constitution were in some res-
pects very odd. For instance, the constitution prescribed that for every
seven hours of broadcasting time in Greek there were to be three hours

10. See pp. 35-8.

11. cf. de Smith, The New Commonwealth and its Constitutions, ch. 8; Cmnd 1093
(I960).

22 General Foundations
in Turkish. It laid down the community from which a coroner was to be
drawn for the conduct of an inquest, depending pn the community of the
deceased. This does at least bring out the point that there is no pre-
determined body of subject-matter appropriate for inclusion in a consti-
tution. A
written constitution for Britain would surely have nothing to say
about coroners; it might, however, include a section about broadcasting
services and maintenance of impartiality.

Tanzania

Our last example, the Interim Constitution of Tanzania (1965), belongs

to quite a different category. Whereas the constitution of Cyprus was so
encumbered with prohibitions as to be almost unworkable - it did break
down in December 1963, again in 1974, and probably Humpty Dumpty
will never be put together again - the constitution of Tanzania imposed few
restraints upon the Government. It is, in fact, a constitution for a one-party
State; or, to be more exact, a State monopolized by two single-party
systems, one operating exclusively in Tanganyika and the other iri Zanzi-
bar. Tanganyika had become independent under a ‘Westminster model*
type of constitution in 1961, and it adopted a republican constitution, with
a President who was both head of State and head o Government, a year
1

later. Early in 1964 Zanzibar’s newly independent regime was overthrown

by revolution, and union with Tanganyika took place a few months later
on a partly federal basis. The 1965 constitution has a number of interesting
features in an African context, not the least of them being a procedure for
ensuring that elections in Tanganyika to the National Assembly are
genuinely contested (though only under the auspices of the single party).
There is also a Permanent Commission of Enquiry, a kind of collective
Ombudsman, The constitution of
responsible to the President. TAN
U, the
single party in Tanganyika, scheduled to the constitution of the Repub-
is

lic. But built-in constitutional safeguards and guarantees are hard to find.

In place of a justifiable bil of rights there is a preambular affirmation of

general principle. The tenure of superior judges and the Controller and
Auditor-General is protected against arbitrary termination but there are
,

no corresponding safeguards of the prosecuting process

for the impartiality
or for the status of civil servants. In Tanzania the constitution is not con-
ceived of as a brake; it is a framework within which the Government and
the Party can operate more or less freely in their self-imposed task of
national mobilization. There, as in so many new states in Africa and Asia,
it is simply not true to say that constitutions spring from a belief in ‘con-
stitutionalism’ or limited^overnment.

Constitutions 23
A written constitution for Britain?
We have glanced at three constitutions. We could have made a tour of a
hundred and fifty others. Every independent Commonwealth country has
a written constitution, with the exception of Britain itself. New Zealand, 12
and a few countries which are in the process of reconstructing new consti-
tutions i'n place of old ones that have been overturned. Every British
colony and protectorate has a written constitution. Indeed, so has nearly
every country in the world. Why does Britain stand out as an anomaly?
13

The answer lies above all in the facts of history. In other countries
constitutions have been granted or adopted to mark stages in a progression
towards (or a regression from) self-government, to establish the foun-
dations of the machinery of government in a newly independent State (for
example, the United States, Cyprus) or a reconstituted State (for example,
Malaysia, Tanzania), or to rebuild the machinery of government following
the wreckage caused by defeat in war, or to start afresh after a revolutionary
upheaval or because of widespread disillusionment with the existing regime,
or even to signify a change in ideological attitudes. With very few excep-
tions, governments in the modern world feel it necessary to point to a
constitution as the source of their authority - if only as a badge of legit-

imacy or respectability.
In Britain none of these factors has been effectively at work. England
has not been unambiguously defeated in war, or at least has not been
successfully invaded (save by special invitation) since 1066. There were,
it is true, two revolutions in England during the seventeenth century. The

Civil War of 1642-8 ended with the execution of Charles I in 1649 and the
establishment of a republican Commonwealth. From the ferment of
political ideas, there an authentic written constitution,
emerged in 1653
of Government. But in the
skeletal but readily identifiable, the Instrument
welter of controversy this document (which was to be influential in the
North American colonies) was soon reduced to the status of a scrap of
paper; the revolution petered out and Charles II was restored in 1660. In
1688 James II was deposed after a reign of three years; the Crown was
offered to a usurper, William of Orange, who accepted it jointly with his
wife Mary, James ITs daughter, and the Glorious Revolution triumphed.
The revolutionaries, however, were insistent that they were nothing more
than the conservators of the ancient rights and liberties of the people,
which James ha3 been seeking to subvert. James, moreover, was deemed
to have abdicated. Apart from changing the line of succession to the throne.

12. See K. J. Scott, The New Zealand Constitution.

•
13. See A. Peaslee, Constitutions of Nations; A. Blaustein and G. Flanz, Constitutions
of the Countries of the World,

24 General Foundations
 and enacting, in the Bill of Rights 1689, some fairly important limitations
on the royal prerogative. Parliament attempted no fundamental restate-
ment of the constitution. To have made such an attempt would have been
14
politically imprudent, and in any event this was not a time when consti-
tutions had become fashionable. And, indeed, instead of laying the foun-
dations of a written constitution, it formed a bas*e for the concept of
untrammelled parliamentary sovereignty. Since then the serenity of his-
torical continuityhas survived Jacobite revolts, the French Revolutionary
and Napoleonic Wars, riots at home and some bloodied noses in far-away
encounters; and the two World Wars of the twentieth century have ended
in victory. In modern times Britain has known neither the humiliation of
conquest nor the turmoil of full-scale revolution.
Since England was a sovereign State for many centuries, the question of
adopting a constitution on the attainment of independence did not arise.
But in 1707 England ceased to be an independent State. It entered into
union with the independent State of Scotland. This union was founded on
Articles of Union negotiated by commissioners representing the two
Parliaments, and it was consummated by separate Acts of Union merging
the two Parliaments into a new Parliament of the United Kingdom of
Great Britain. The Articles of Union, incorporated with the Scottish Act
in the English Act of Union, were expressed to be fundamental and un-
alterable conditions of the Union. They provided a rudimentary frame-
work of a written constitution. Yet south of the border the Act of Union
has not been regarded as enjoying any greater binding force in strict law
than other statutes of major constitutional importance. 15
There are other reasons why the question of adopting a written consti-
tution has seldom been seriously agitated - insularity, a lack of interest in
political philosophy, extremist ideology or the constitutional experience
of other countries (merging into complacency and convictions of collective
superiority), a dearth of enthusiasm among politicians for restraints that
might impede their freedom of action when in office, a relatively high
degree of homogeneity, a latitudinarian and pragmatic approach to
religious and political differences, and a widely diffused acceptance of
traditional forms, gradualism and parliamentary methods. Britain’s one in-
tractable political (and religious) problem was Ireland; and it is significant

14. Immediately after the Revolution, when the conditions under which the throne
Should be offered to William and Mary were being discussed, more radical views were
canvassed, but they were shelved because an ensuing controversy would have delayed
the settlement; see Taswell-Langmead’s English Constitutional History (11th edn),
p. 447; J. R. Western, Monarchy and Revolution ch. 9.
,

15. See further, p. 72. The legal effect of the Act of Union with Ireland 1800 has
also been a matter of controversy.

Constitutions 25
 that it was in relation to Ireland, in 1885, that fundamental thinking

about the restructuring of the British constitution came to the surface.

Only after the First World War, with the partitioning of Ireland and the
creation of a separate Irish Free State (later Eire, and now the Republic of
Ireland), was it possible to sweep this embarrassing problem under the
carpet - till 1969.
Has there been any recent development important enough to warrant
serious speculation about the prospects of adopting a written constitution
for the United Kingdom?

1. A number of undermine social stability or to

factors have tended to
depress national morale in Britain. There is widespread disillusionment

with the main political parties, a ‘credibility gap’ between promise and
achievement; a more sober awareness that any British Government’s
freedom of action in international and economic affairs is severely circum-
scribed; a realization that Britain has become less prosperous than several
other industrial countries, that the sun is setting on the Empire that was
to last a thousand years, that dark strangers are in our midst to stay, that
the individual citizen and his parliamentary representative count for little
- in public affairs, that ancient faiths and of deference to authority
habits'
rest on insecure foundations. But if there are widely diffused feelings of
malaise and pessimism, they have yet to crystallize in any clamant demand
for basic constitutional change, at least in England. Youthful revolution-
aries denounce ‘consensus politics’ and the institutions of an immoral
society, but their protest demonstrations evoke backlash rather than a
sympathetic response among the community at large. Cynical apathy is a
more pervasive phenomenon, but it is one that militates against construc-
tive, or even destructive, thinking. It has yet to be shown that nationalistic
xenophobia, rooted in insecurity and resentment and hitherto directed
mainly against Commonwealth immigrants, cannot be accommodated
within the main political parties. Even if it cannot be, that would not
necessarily portend any constitutional change. There is indeed no sign that
a revolutionary situation is about to develop.

2. By acceding to the European Communities on 1 January- 1973, the

United Kingdom accepted obligations entailing profound changes in our
constitutional law. But it is perfectly possible to be a member of the Com-
munities without having a written constitution. If, however, the Com-
munities were to develop into a federal super-State - and that is still a
remote prospect - we should probably need to have a written constitution
so as to define the limited competence of our domestic organs of govern-
ment.

26 General Foundations
 3.The Royal Commission on the Constitution reported in 1973. 1<5 It
recommended the devolution from Westminster of certain legislative, ad-
ministrative and executive powers to Scotland and (in more limited
respects) to Wales. After the publication of White Papers and the holding
of discussions, the Government has introduced a bill to give effect to the
scheme in the 1976-7 session of Parliament. The Government’s plans are
devolutionary, not federal: only if separatist sentiment in Scotland and
Wales were to assume unappeasable proportions would it be conceivable
that a solution would lie in the adoption of a federal constitution for the
United Kingdom. Such a fundamental change would demand - at least - a
partly written constitution.

If, however, it were legally possible - and we shall beg this question for

the time being - to create a federal constitution, hierarchically superior

to any parliamentary body in the United Kingdom, then the study of
constitutional law in this country would attain We should
new dimensions.
have to consider judicial review of the constitutionality of legislation - a
matter which up to now has affected only Northern Ireland. And then
there would be other questions to ask. Apart from restrictions on the
territorial competence of the Legislature, should there not be introduced
restrictions on the type of legislation it was competent to pass? For
instance, might it not be a good thing to have a constitutionally entrenched
bill of rights, preventing the Legislature and the Executive from, say,

authorizing or taking any retrospective penal measures, or making un-

reasonable encroachments on freedom of movement or expression, or
taking away property rights without compensation ? The discussion as to
whether a new Bill of Rights should be enacted has become intense of late,
particularly as a result of Scarman L .J.’s Hamlyn lectures. 17 To embark
upon it would be to enshrine the principle of limited government in an
institutional form, common enough in other lands but novel in Britain.
Naturally one would have to work out satisfactory procedures for the
amendment of entrenched provisions, and the procedures might differ
according to the context.
This having been said, one cannot think that such an idea would be at
16. Vol. I, Report, Cmnd 5460 (1973), Vol. II, Memorandum of Dissent, Cmnd
5460-61 (1973). See further pp. 639-40.
17. Sir LeslieScarman, English Law - the New Dimension (1974); Quintin Hogg,
New Charter (Conservative Political Centre, 1969); Anthony Lester, Democracy and
Individual Rights (Fabian Society, 1969); Hood Phillips, Reform of the Constitution
(1970); Lord Lloyd of Hampstead, (1976) 39 Mod. L.R 121 Zander, A Bill of Rights?
.
;

(1976); Jaconelli, [1976] Public Law 226. The immediate enactment of a bill of rights
is Liberal Party policy; the Conservative Party is studying the matter and the Labour

Government has published a discussion paper, Legislation on Human Rights with

particular reference to the European Convention (Home Oflice, 1976). See alsopp. 442-3.

Constitutions 27
all attractive to the national parties likely to form a United Kingdom
Government. Governing the country would become more difficult. And
imagine what the position would have been in 1972 if the United Kingdom
Government and Parliament had been legally debarred from encroaching
18
on the autonomy of Northern Ireland.
A written constitution for Britain would have to be justified by reference
to an overwhelming political need for restricting Parliament’s powers. If
this justification were established, it would be sensible to include in the
constitution a selection of the most important rules about the organs and
machinery of government.

19
Aspects of classification
Written and unwritten *

This mode of classifying constitutions has already been discussed. Among

liberal democracies in 1972, only the United Kingdom, New Zealand and -

20
Israel lacked a written constitution in the narrower sense of the term.
But the law of the constitution in those countries can be found in writing -
in statutes, law reports, parliamentary standing orders, works of authority,
and so on, although an authoritative and reasonably comprehensive
9
document called the ‘Constitution is lacking.

Flexible and inflexible

Constitutions for which no special procedure for amendment is prescribed

are prima facie more than others. But flexibility is a matter of
flexible
degree, and will not necessarily be predetermined by the formal procedure
for constitutional amendment. And some constitutional rules will in
practice be more than others. In the United Kingdom the ‘consti-
flexible
tution* is, in theory, entirely flexible, but legislation to abolish the mon-

18. See ch. 30. One should also note the impatience of the United Kingdom Govern-
ment with inconvenient judicial decisions giving a restrictive interpretation to the
Government of Ireland Act 1920. A decision that the Northern Ireland Parliament and
Government could not confer powers on British troops for law enforcement was very
speedily rectified by the Northern Ireland Act 1972 (passed before Stormont was
suspended by the Northern Ireland (Temporary Provisions) Act 1972). For an earlier
precedent, removing the constitutional prohibition against taking away property with-
out compensation (Government of Ireland Act 1920, s. 5 (1)), see Northern Ireland
Act 1962, s. 14. passed in consequence of the decision in Belfast Corporation v. O.D,
Cars Ltd [1960] A.C. 490.
19. For a more elaborate classification see Leslie Wolf-Phillips, Comparative Consti-
tutions (1972). See also Leslie Wolf-Phillips, Constitutions of Modern States
Introduction.
20. See E. Likhovski, Israel *s Parliament: The Law of the Knesset (1971).

28 General Foundations
archy or to extend the maximum duration of a Parliament could only be
passed in very extraordinary circumstances. In Ghana under Nkrumah
the superior judges (other than the Chief Justice) enjoyed security of
tenure against the Executive, and their tenure was entrenched by the
constitution; but in the political situation existing in 1964 the President
had no difficulty in first procuring a constitutional amendment rendering
the judges dismissible at his pleasure and then going on to dismiss some of
them for incurring his displeasure.

Monarchical and republican

This is no longer a difference of any general importance, because it tells
us nothing worth knowing about the form or substance of government.
One can have an absolute monarch or one with extensive pcisonal dis-
cretionary powers (as in Nepal), or one with very limited personal powers
(as in the United Kingdom and several Commonwealth and Western
European countries). One can have a President who is head of State but
is not the effective executive head of Government (as in India and West

Germany), or one who is both head of State and head of Government (as
in the United States and a great many other countries).

Presidential andparliamentary

This method of classification is concerned with the executive branch of

government and its relationship with the Legislature. Under a ‘presiden-

tial’ system the head of the executive branch is also head of State, and is

not a member of or directly responsible to the Legislature. In a parlia-

mentary system the chief executive is a Prime Minister who is a member
of and is responsible to the Legislature. Thus the American system and its
imitators are distinguishable from the Westminster model of responsible
government. But this kind of classification is not very illuminating,
because of the wide variations within each type of system. For example,
in Kenya there is an executive President, but he has to be a member of the
Legislature; in Tanzania and several of the other presidential regimes in
Africa, the President cannot be a member of the Legislature but (in
contrast to the United States) his Ministers must be members of the
Legislature, though they are not fully responsible to it. Again, whereas the
President of the United States has no power to dissolve Congress, the
power of dissolution is vested in Commonwealth executive presidents; and
whereas the constitutional powers of the American President are hedged
about by checks and balances, presidential heads of government in new
states are usually freer from restraints. And the constitution of the fifth
French Republic is both presidential and parliamentary.

Constitutions 29
Single-party and other constitutions

Obviously a constitution under which only one party can legitimately

operate tends to differ from one in which, at least ostensibly, freedom of
political association is permitted. A constitution for a single-party State
is apt to be something of a political manifesto. In such a constitution, lip-
service may still be paid to the basic freedoms of the individual. Again,
however, constitutional forms may give little indication of what happens in
practice. In some states with single-party constitutions there is more free-
dom. of expression than in near-by countries with impeccably liberal
constitutions.

Federal and unitary

The difference between a federal and non-federal constitution will often

be clear-cut; sometimes be only one of degree; sometimes it will be
it will
positively misleading. The United States, Australia, Canada, West Ger-
many and Switzerland are manifestly federal States. The relationship be-
tween the United Kingdom and Northern Ireland under the Act of 1920
was strictly non-federal, since Northern Ireland had no exclusive field of
competence, but in practice the degree of regional autonomy till 1970 was
substantially greater than that of the republics of the Soviet Union or even
the states of Malaysia, both of which countries have nominally federal
constitutions. Tanzania is a part-federation, since Zanzibar has exclusive
fields of competence both in theory and in practice; but for political
reasons the term ‘federal’ does not appear in the constitution inasmuch as
it implies a degree of disunity as well as diversity. The relationship between

the United Kingdom and the associated states in the Caribbean, under the
West Indies Act 1967, 21 is substantially federal, for the United Kingdom’s
paramount powers in the states are confined to matters relating to defence
and external affairs, and a short list of other topics; but the United King-
dom and its associated states are not a ‘State’ for the purposes of con-
stitutional law.

Diarchical and other constitutions

A diarchical constitution can be defined as one in which there is a division

of governmental competence between two or more authorities in the State
otherwise than on a regional basis. For instance, law-making powers may
be divided between the Legislature and the Executive, the former having
power to pass laws within a defined field and the latter having an auton-

21. See p. 650.

30 General Foundations
omous and exclusive power, derived directly from the constitution, to
issue decrees, ordinances or regulations within a defined field; this, broadly
22
speaking, is th| position under the French constitution . In Cyprus the
constitution provided for elaborate demarcations of competence in the
executive functions of government, and also assigned certain legislative
functions exclusively to non-territorial Greek and Turkish communal
chambers. Such divisions of competence have certain affinities with the
separation of powers doctrine, of which more will be said later; they also
indicate that the concept of unitary, as distinct from federal, constitutions
is not particularly illuminating in some political systems.

22. Nicholas [1970] Public Law 251.

Constitutions 31
 Chapter 2
The British Constitution

Characteristics

Here we shall state, or restate, very briefly the main features of the British
constitutional system. All the characteristics to be listed differentiate the
British constitution from some other constitutions.

Unwritten character . The British constitution is not written in a basic

document or group of documents.
Continuity of development It has evolved over the centuries with but few
.

sudden or dramatic changes, and a high degree of historical continuity

has been maintained as the constitution has been brought up to date. Of
the modem institutions of government, some are still rooted in medieval
origins. Among the existing rules of British constitutional law, quite a
number were laid down in the seventeenth century or earlier. Our history
is still with us. But the constitution is not a museum piece. The greater
part of our constitutional law has been made this century.

Parliamentary sovereignty Parliament as a legislative body can enact any

.

law whatsoever on any subject whatsoever in the eyes of United Kingdom

1
courts, according to the generally held view. Changes in rules of con-
stitutional law can be effected by ordinary legislation.

Law and convention . Particularly in the working of the executive branch

of government and its relationship with the Legislature, the constitution
is regulated to a large extent by rules which do not belong to the normal
legal categories.These rules are called constitutional conventions. They
are rules of political conduct or binding usages,most of which are capable
of being varied or of simply disappearing as political conditions and ideas
change. If conventions are to be classified as rules of constitutional law,
then the term ‘law’ must be given a very broad meaning. To use the term
Taw’ in more than one sense is not in itself unusual. Sometimes it is con-
venient to contrast constitutional convention with ‘strict law’. Thus, in
strict law- (by virtue of the royal prerogative) the Queen can dismiss her
Ministers at pleasure. By convention this legal power is exercisable only
1. For possible exceptions to this basic rule, see ch. 3.

32 General Foundations
in very extraordinary circumstances. And because it is well understood
that, save in exceptional situations, the Queen must act in accordance with
ministerial advice, Parliament still adopts the form of conferring dis-

cretionary powers on Her Majesty. This dichotomy of law and convention

pervades much of our constitutional law.

Flexibility . The absence of a cumbersome procedure for altering rules of

constitutional importance, the omnicompetence of Parliament and the

pliability of many constitutional conventions tend to make the British
constitution flexible and easily adaptable. But, as we have pointed out,
a question of degree. It would be easier in practice to enact
flexibility is
House of Lords or the hereditary peerage or the
legislation to abolish the
Privy Council than, say, to abolish the remedy of habeas corpus. More-
over, not every constitutional convention is flexible in practice; some
conventions are very rigid.

Unitary nature . The United Kingdom is a unitary, not a federal, State at

the present time. If it were a federal State, Parliament would not be

omnicompetent.

Freedom of political activity The legitimacy of organized dissent and

.

opposition to the Government is recognized by convention; and nowadays

there are few oppressive legal restrictions on freedom of expression and
association in political controversy. Elections are freely and on the whole
fairly conducted.

Limited monarchy Succession to the throne is hereditary. The functions of

.

the head of State are primarily ceremonial, and despite their amplitude in
strict law they are now of little or no political significance in normal times.

Bicameralism. The upper House of Parliament, the House of Lords, still

constituted mainly on a hereditary basis, is of minor importance; the lower
House, the elected House of Commons, is the focus of political attention.
Parliamentary Executive The political arm of the executive branch of
.

government is from and located within Parliament, and the

recruited
Cabinet is collectively ‘responsible’ to Parliament in general and the
House of Commons in particular. A Government would either have to
resign or go to the country if it were to forfeit the support of a majority in
the Commons.
Executive dominance in the Legislature Because of the structure of modem
.

British political parties, and the operation of the electoral system and
certain constitutional rules, the Government in office is normally able to
command parliamentary support for the implementation of almost any
policy that it is in practice likely to adopt. The Government has indeed

The British Constitution 33

 ;

-to be responsive to parliamentary opinion, as well as to the weight of

opinion in the electorafe at large, but one must not imagine that it is in
any real sense a delegate or agent of Parliament. Parliamentary government
is not government by Parliament. The Government governs in and through

Parliament. At the same time, it would be erroneous to speak in terms of

4
Cabinet dictatorship’. A
Government operates within a complex network
of constraints, restricting its freedom of manoeuvre.

The civil service is non-partisan except in so far as

Impartial public service .
it Government in office. Its insulation from political involve-
serves the
ment, and the security of tenure enjoyed by its members, have been the
product of convention, not of strict law.

'
. Judicial independence. The Judiciary is appointed by the Executive, but it is

^ conspicuously independent both of the Executive apd of the Legislature,,

, partly because of rules of strict law but mainly because of extra-legal factors.
The prestige of the superior judges in Britain is exceptionally high by any
international standard. Whether this fact is related to the self-imposed rule .

that judges cannot question the constitutionality of duly enacted statutes is

a matter for speculation.

''

Constitutionalism. Despite the absence of constitutionally entrenched

guarantees and prohibitions or impregnable institutional bulwarks against
the abuse of power, serious encroachments on basic individual freedoms
are rare, in times of peace , 2 and the protection of dissenting minorities in
Britainis more efficacious than in many states which enjoy a superabun-

dance of devices designed to achieve this end. Those rules and practices
which do restrain abuses of public power under the British constitutional
system are generally observed. The formal restraints are not always as
effective as in some other liberal democracies - for instance, Parliament
is a less formidable body than the United States Congress; the powers of
the courts are significantly narrower than in America; civil liberties are
not buttressed by a bill of rights - but there is a widely diffused acceptance
of the principle that the restrictive rules of the political game are more
-important than the retention of power, or the pressing of legal power to
the ultimate limit at the expense of individual liberty. In this sense we can
say that constitutionalism, or limited government , or the rule of law - the
meanings of these expressions overlap - exists in Britain 3 .

2. But note the Prevention of Terrorism (Temporary Provisions) Acts of 1974 and
1976, passed to combat bomb and other terrorist outrages: see p. 446.
3. The readers who feel that these assertions show an establishmentarian bias may -

. wish to consult as correctives Harold Laski, Parliamentary Government in England ;

Ralph Miliband, The State in Capitalist Society ; Paul O’Higgins, Censorship iit Britain

D. N. Pritt, Law, Class and Society. , 1 * ‘ - *

*
’
•

34e GeneraLFoundations ,
 The rule of law and the separation of powers
Dicey4 saw the rule of law as a central feature of the British constitution.
He had his own idiosyncratic ideas of what the concept of the rule of law
implied. His ideal, rooted in Whiggish libertarianism, were very influential
for two generations ; 5 today they no longer warrant detailed analysis. Nor
would it be justifiable to examine the general concept of the rule of law at
length in this book. The concept is one of open texture: it lends itself to an
extremely wide range of interpretations. One can at least say that the
concept is usually intended to imply (i) that the powers exercised by
politicians and officials must have a legitimate foundation; they must be
based on authority conferred by law; and (ii) that the law should conform
to certain minimum standards of justice, both substantive and procedural!
Thus, the law affecting individual liberty ought to be reasonably certain or
predictable; where the law confers wide discretionary powers there should
be adequate safeguards against their abuse; like should be treated alike,
and unfair discrimihation must not be sanctioned by law; a person ought
not to be deprived of his liberty, status or any other substantial interest
unless he is given the opportunity of a fair hearing before an impartial
tribunal; and so forth. The concept has an interesting characteristic: every-
one who tries to redefine it begins with the assumption that it is a good
thing, like justice or courage. When Communist theoreticians extol the
merits of ‘socialist legality’, they could simply substitute the term ‘rule of
law’, though tlgeir conceptions of what it connoted would differ from those
of liberal democratic ideologists.
The doctrine of the separation of powers, like the rule of law, has usually
been discussed as one which ought to be embodied in a system of govern-
ment. But whereas commentators are almost unanimous that the rule of
law (whatever it may mean) is splendid, the virtues of the separation of
powers do not evoke so enthusiastic a chorus. Perhaps this is partly
because the doctrine has acquired a harder core of generally accepted
meaning, and because some constitutions survive adequately without
relying on it for sustenance.
This not to say that the quintessence of the separation of powers is
is

easy to distil. The doctrine has emerged in several forms at different

4. A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn)
1
pt 2, especially ch. 4. The first edition was published in 1885.
5. The Law and the Constitution included a sustained critique of
Sir Ivor Jennings’s
Dicey’s views, moderated, however, in the later editions. See Appendix 2 to the 5th edn.
For more sympathetic assessments, see E. C. S. Wade, Introduction to the 10th edn of
Dicey, pp. xcvi-cli; and F. H. Lawson (1959) 7 Political Studies 109, 207. cf. Ford
(1970) 18 Political Studies 220. For further comment see pp. 511-13.

The British Constitution 35

periods and in different contexts. 6 It is traceable back to Aristotle; it was

developed by Locke; best-known formulation, by the French political

its

philosopher Montesquieu, was based on an analysis of the English con-

stitution of the early eighteenth century, but an idealized rather than a real
English constitution; the disciples of Montesquieu, particularly numerous
in the North American colonies, added their own refinements; and today
the doctrine survives in a number of curious manifestations. No writer of
repute would claim that it is a central feature of the modern British consti-
tution. However, a brief survey of the doctrine brings out more clearly
some features of the British system of government.
The doctrine, as propounded by Montesquieu and his followers, may
be stated briefly as follows:

1. There are three main classes of governmental functions: the legislative,

the executive and the judicial.
2. There are for should be) three main organs of government in a State:
the Legislature, the Executive and the Judiciary.

3. To concentrate more than one class of function in any one person or

organ of government is a threat to individual liberty. For example, the
Executive should not be allowed to make laws or adjudicate on alleged
breaches of the law; it should be confined to the executive functions of
making and applying policy and general administration.

Even if first two propositions, one is not obliged to

one accepts the
accept the third. To
concentrate a large quantity of power in the hands of
one person, in the absence of proper safeguards, is surely more dangerous
than to combine a few powers analytically different in quality in the same
hands, if adequate safeguards exist. And a rigorous segregation of func-
tions may be highly inconvenient In many countries subscribing to versions
.

of the separation of powers doctrine, rule-making powers have been vested

in the Executive because it is manifestly impracticable to repose such
powers exclusively in the Legislature. The third proposition stated above
is therefore both extreme and doctrinaire, and is not taken literally by all

proponents of the theory.

One of the implications commonly read into the separation of powers
doctrine is that the three branches of
government ought to be composed
of United States for instance, the President and
different persons . In the
his Cabinet cannot be members of Congress (although the Vice-President
presides pver the Senate). It does not inevitably follow that the three
branches should have no points of contact, though it does follow that the

6. For the fullest recent analysis, see M. J. C. Vile, Constitutionalism and the
Separation of Powers

36 General Foundations
 one branch of government should not be in a position to dominate the
others. Matters may be so designed that each branch operates as a check
on the others. Again we can use the United States as an illustration. The
Presidentmay veto legislation but has no power to dissolve Congress;
although he holds office for a fixed term and is not dependent on the sup-
port of a Congressional majority, he can be impeached by Congress 7 he ;

appoints federal judges but his appointments need to be confirmed by

the Senate ; 8 the courts can determine the constitutionality of legislative
enactments and administrative action, but judges cannot validly be given
powers totally alien to the judicial office; federal judges cannot be removed
by the Executive but they can be impeached by Congress. In France, on
the other hand, the separation of powers has been understood to preclude
the ordinary courts from determining the constitutionality of legislation;
yet judicial and administrative functions are commingled in the Conseil
d'Etat, and and executive powers in the Presidency.
legislative
In Britain 9 we have Cabinet government with a parliamentary Executive;
the Law Lords act both as judges and as legislators; the Lord Chancellor
is a Minister as well as head of the Judiciary and an active member of the

House of Lords in its legislative capacity. Legislative powers are delegated

by Parliament to members of the Executive (the Queen in Council, and
Ministers) powers to determine justiciable controversies are also confided
;

in Ministers and other non-judicial agencies. Indeed, there never was a

time in English constitutional history when the functions of government
were neatly compartmentalized. The medieval Curia Regis the King’s ,

Council, exercised all three classes of functions. Parliament was a High

Court as well as a legislative body. For several centuries the local govern-
ment authorities in the counties were judicial officers, the justices of the
peace. But the modern Judiciary does stand in a special position. Pro-
fessional full-time judges are disqualified for membership of the House of
Commons because any other arrangement would hardly be compatible
with the judicial office; the Law Lords generally abstain from politically
controversial debate in the upper House, and only the Lord Chancellor
and former occupants of that office have a free rein. Moreover, a number of
rules and practices insulate judges in office from political pressure.

7. Impeachment of a President is, however, rarely embarked upon. President

Andrew Johnson was impeached in 1868 but escaped conviction by one vote; impeaca-
ment proceedings were started against President Nixon but were pre-empted by his
resignation in 1974 in the aftermath of the Watergate scandal.
8. President Lyndon Johnson’s choice for Chief Justice, Justice Fortas, and two

consecutive nominations, of Judges Haynsworth and Carswell, made by President

Nixon to fill a vacancy on the Supreme Court, were rejected by the Senate.
9 See generally, E. C. S. Wade and G. G. Phillips, Constitutional Law (8th edn),
ch. 3.

The British Constitution 37

 If we had a written constitution, this insulation of the Judiciary might
be more complete. Two examples bring out this point. In the Common-
wealth of Australia, as we have seen, the constitution allocates the legis-
lative, executive and judicial powers to the corresponding organs of

government. There is a parliamentary Executive, as in Britain, and the

Australian courts have declined to hold that parliamentary delegation of
legislative powers to the Executive is unconstitutional; but they have
held that the judicial power of the Commonwealth can be vested only in
‘courts’ within the meaning of the constitution, and that powers wholly
alien to the judicial cannot be vested in those courts. 10 In Ceylon the con-
stitution did not allocate judicial powers in the same form, and it would
be reasonable to infer that the separation of powers doctrine had no place
in the constitutional jurisprudence of the island. But in a famous case the
Judicial Committee of the Privy Council held that implicit in the consti-
tution lay the principle that the province of the Judiciary was immune
from the grosser kinds of encroachment by the Executive and the Legis-
lature; hence, retroactive legislation designed to secure the conviction and
punishment of particular persons for specified conduct was declared
unconstitutional, for approximated to a non-judicial judgment. 11 One
it

wonders how the War Damage Act 1965, which reversed a judicial
12
decision of the House of Lords with retroactive effect, would have fared
if it had been measured against a written British constitution in which

judicial review of the constitutionality of legislation was accepted.

It is easy to see, therefore, that the immunity of the Judiciary from

interference by the political organs of government could be fortified by a

written constitution; and such a constitution would certainly entrench the
judges’ security of tenure. To that extent the doctrine of the separation of
powers,
11. and the climate of thought of which it is a part, has practical
value. Whether it would be helpful, as a means of restoring the vitality of
Parliament, to separate the Executive from the Legislature in Britain is an
interesting but academic speculation. The blending of Executive and
Legislature is a fundamental characteristic of the British system of govern-
ment. To discard it would be a more startling change than the introduction
of federalism and entrenched civil liberties in a written constitution.

10. See Att.-Gen for Australia v. R. and the Boilermakers * Society of Australia [1957]
,

A.C. 238 (P.C.) affirming the decision of the High Court of Australia sub nom . R v. .

Kirby; ex p. Boilermakers' Society (1956) 94 C.L.R. 254.

Liyanage v. R. [1967] 1 A.C. 259; cf. Kariapper v. Wijesinha [1968J AC. 717
(Liyanage's case distinguished).
12. Burmah Oil Co. v. Lord Advocate [1965] A.C. 75.

38 General Foundations
 Sources of British constitutional law

The law of the constitution, though in one sense unwritten, is traceable

to written sources, some of which are recognized as authoritative law-
making agencies.

Legislation

This is by far the most important of constitutional law. In

single source
the first place, there are Acts of Parliamentsuch as the Bill of Rights
1689, the Act of Settlement 1701, the Act of Union with Scotland 1707,
and now the European Communities Act 1972, embodying rules of major
importance in the history of the constitution. There are numerous Acts
dealing with the electoral system and the composition and functioning of
Parliament (for example, the Representation of the People Acts, the House
of Commons (Redistribution of Seats) Acts, the House of Commons
Disqualification Act 1975, the Life Peerages Act 1958, the Peerage Act
1963 (permitting the disclaimer of hereditary peerages), the Parliament
Acts of 191 1 and 1949 (asserting the primacy of the House of Commons in
conflicts between the two Houses), and the Royal Assent Act 1967). There
are statutes relating to the monarchy, regulating the succession to the
throne, authorizing the adoption of new forms of the royal style and titles,
and providing for a regency; but there are not many statutes of general
importance defining the authority of the political executive branch. Acts of
Parliament have made big changes in the law relating to civil liberties (for
example, the Habeas Corpus Act 1679, the Administration of Justice Act
1960, the Public Order Acts, the Defamation Act 1952, the Obscene
Publications Acts, the Race Relations Act 1976, the Theatres Act 1968
which abolished theatrical censorship). We have legislation relating to
British nationality, the status of aliens, and immigration and deportation;
regulating the conditions under which fugitive offenders may be extra-
dited; conferring diplomatic and iBndred privileges and immunities. In the
general area of administrative law we have major enactments such as the
Crown Proceedings Act 1947, the Parliamentary Commissioner Act 1967,
and the Tribunals and Inquiries Act 1971, and a host of statutes regulating
particular fields of administrative action. And then there are numerous
Acts concerning Commonwealth relations, such as the Statute of West-
minster 1931 (setting the seal on the concept of Dominion status), the West
Indies Act 1967 (introducing the concept of associated statehood), and in-
dependence Acts. One has only to glance through the statute book for any
year in the late 1960s or the 1970s to appreciate how much legislation of
constitutional interest is enacted by Parliament. The overwhelming bulk of
this legislation has been introduced by Ministers.

The British Constitution 39

 Subordinate legislative instruments are also a source of constitutional
law. For example, Orders in Council are made under the Ministers of the
Crown Act 1975 to transfer functions between Ministers and to alter their
titles; Orders in Council and regulations of constitutional importance

can be made under the European Communities Act 1972. Orders in

Council (made by the Queen in her Privy Council) and rules and regu-
lations made by Ministers under statutory authority are called statutory
instruments within the meaning of the Statutory Instruments Act 1946. In
a narrow field, the Crown has an inherent law-making power exercisable
by virtue of the royal prerogative; examples of the use of this non-statutory
power are Orders regulating the civil service.

Common-law sources

Beneath this general rubric are subsumed rules widely different in character
from one another.
() There is a small group of customary rules, now partly modified by
statute, determining what is an Act of Parliament and enunciating the
principle of parliamentary sovereignty. Clearly these rules are of funda-
mental importance in our legal system. Their origins and present status
will be examined in the next chapter.
() The royal prerogative is the gradually diminishing residuum of
customary authority^ privilege and immunity, recognized at common law
as belonging to the Crown, and the Crown alone. In the great Case of
Proclamations (161 1) 13 the judges of the common-law courts emphatically
asserted their right to determine the limits of the prerogative; and since
the Revolution of 1688 this claim has not been contested by the Crown.
Among the prerogatives still exercised by or in the name of the Crown are
the appointment of Ministers, the dissolution of Parliament, the power of
pardon and the award of honours and dignities; these powers must, as a
matter of constitutional convention, normally be exercised on ministerial
advice. The immunity of the monarch from prosecution in the courts is
another aspect of the royal prerogative.
(c) Judicial decisions are also a significant source of constitutional law.

Indeed, Dicey went so far as to assert that the British constitution, was ‘a
judge-made constitution’. 14 He was thinking particularly of the rules
relating to the liberty of the person, freedom of expression and freedom
of association, which had been demarcated largely by binding precedents
set by the superior courts. The law of civil liberties is still to a large extent

33. 12 Co. Rep. 74.

14. Dicey, op. cit., p. 196.

40 General Foundations
judge-made, though statutory restatement has become increasingly
important in recent years. The law relating to judicial review of adminis-
trative action is predominantly judge-made, and it has probably developed
faster since 1963 than in any comparable period. Again, judicial decisions
have set limits not only to the royal prerogative but also to the ambit of
parliamentary privilege.
{d) Legislation of constitutional importance may be moulded by
judicial interpretation; and there are common-law presumptions of legis-
lative intent (for example, that major constitutional innovations cannot
be introduced, and taxation cannot be imposed, 16 save by virtue of clear
15

and express statutory language) which conserve what are understood to be

constitutional principles against casual erosion.

Conventions of the constitution

In order to avoid tedious repetition, and in an attempt to do justice to the

complexity of the topic, we shall consign to a separate section the role of
17
conventions as a source of law. Here it is enough to say that if con-
ventions are regarded as a source of law, then it is inappropriate to affirm
that the law of the British constitution is part of the ordinary law of the
land; for it hasat. least one source which is extraordinary inasmuch as it

begets rules unaccompanied by judicial sanctions or relief.

The law and custom ofParliament

This comprises the rules relating to the functions, procedure, privileges
and immunities of each House of Parliament. To a small extent it is
statutory, and to a still smaller extent judge-made. For the rest, it is either
to be found in resolutions of each House (recorded in the official Journals,
in Hansard and on some important matters in standing orders) or not to
",

be found in any authoritative source because it rests on informal under-

standings or practices. For example, the functions of the Leaders of the

15. See, for example, Nairn v. University of St Andrews [1909] A.C. 147 (votes for
women could be conferred only by a direct grant) Re Parliamentary Privilege Act 1770
;

[1958] A.C. 331 (important provision of Bill of Rights

1689 not impliedly repealed by
generally worded subsequent Act).
16. See, for example, Att.-Gen. v. Wilts United Dairies Ltd (1921) 37 T.L.R. 884,
though see now p. 274. The courts also adopt presumptions against so construing
legislation as to oust the supervisory jurisdiction of the superior courts to determine the
rights and liabilities of individuals, or to authorize deprivation of private property
-
without compensation; see generally D. L. Keir and F. H. Lawson, Cases in Consti
tutional Law (5th edn), pp. 11-15. The force of the last-mentioned presumption has
been weakened: Westminster Bank Ltd v. Beverley B. C. [1971] A.C. 508.
17. See pp. 44-62.

The British Constitution 41

two Houses and the party whips, the duty of impartiality cast on the
Speaker of the House of Commons, the conventional allocation of time
to the Opposition, and the convention that the chairman of the Public
Accounts Committee shall be a member of the Opposition, are not
formally recorded, though they can be elicited from a reading of parlia-
mentary debates. In any event, the internal proceedings of the two Houses
are not cognizable by the courts. For this reason, large tracts of the law
relating to parliamentary privilege have never been subject to judicial
appraisal. And so a great deal of the law and custom of Parliament lies
outside the scope ol the ordinary law of the land.

Community law

With the accession of the United Kingdom to membership of the European

Communities on 1 January 1973, Community law became a source of the
constitutional law of Britain.
Community law 18 is to be found in theCommunity treaties; 19 in regu-
lations, directives and decisions of Community organs (the Council of
Ministers, a political body composed of Foreign Ministers; or the Euro-
pean Commission, a supranational body composed of top Community
officials); and in rulings and decisions of the Court of the Communities

(the European Court). It is applied mainly by courts of the member

States, but authoritative rulings are given by the European Court. Accord-
ing to that Court, Community law is distinct from national law but
exists alongside it; and where Community law is in conflict with national
law. Community law prevails. By section 3 of the European Communities
Act 1972, the United Kingdom has accepted the binding authority of the
rulings and principles laid down by the European Court. The Court has
stated quite clearly several times that no Parliament of a member State
can legislate inconsistently with Community law.' Hence our acceptance of
Community law seems to involve a rejection of the doctrine of parlia-
mentary sovereignty. We shall consider this matter more fully in the next
chapter. But potentially, at least, the importation of Community law
brings with it a constitutional innovation of the highest importance.
A general outline of the structure and functions of the Communities,
and of the interrelationship between Community law and national law,

18. For a good and concise outline, see P.S.R.F. Mathijsen, A Guide to European
Community Law, 2nd edn (1975). See also Appendix.
19. A shorthand expression covering the three original treaties establishing the three
Communities (ECSC, EEC and EURATOM), the instruments by which the United
Kingdom acceded to the Communities, and various other Community agreements.
See the European Communities Act 1972, s. 1.

42 Genera! Foundations
will be found in an Appendix. At various points in the book we shall note
the actual or likely impact of Community law on the law of this country.
In fact the content of Community law has up to now been fairly remote
from the subject-matter of constitutional law; for Community law is
largely about agriculture, free trade, fair competition, transport regu-
and so on. But on certain matters - for example,
lation, social security
immigration and aspects of public finance - it bears directly on specific
areas of constitutional law.
One very important point needs to be made at this stage. Some rules
of Community law are (according to Community doctrine) ‘directly
applicable’ in the sense that they confer rights or impose duties on indi-
viduals, rights and duties which are enforceable in national courts without
being re-enacted by the governmental organs of member States. These
rules are, in the main, regulations made by the Council of Ministers 'or the
Commission. Section 2(1) and part of section 2(4) of the European
Communities Act give effect to the concept of ‘direct applicability’. The
relevant Community rules are to be applied by the courts of this country
‘without further enactment’ as if they were Acts of Parliament. This is a
major constitutional innovation. These regulations will be made in
Brussels in consequence of decisions taken in Brussels.
20
And they are
primary rather than delegated legislation.

Authoritative works

Literature on the constitution has only persuasive authority. Sometimes

unusual and abstruse questions of constitutional law arise before a court
- for instance, peerage law, 21 or aspects of the royal prerogative, 22 or
24
the law of treason, 23 or the definition of an act of State , or the juris-
23 -
diction of the English courts in British protectorates and reference
may then be had to the views of writers of repute for the purposes of
guidance. When a particularly awkward question relating to the scope of
parliamentary privilege was referred to the Judicial Committee of the
Privy Council for an advisory opinion, the opinions of constitutional
historians in the eighteenth and nineteenth centuries were copiously cited
in order to explain the mischief whichan obscure and ambiguous Act of
1770 was designed to cure. 26 In controversies about the existence and
20. See further Appendix.
21. Re Parliamentary Election for Bristol South-East [1964] 2 Q.B. 257.
22. For example, Burmah Oil Co. v. Lord Advocate [1965] A.C. 75.
23. Joyce v. D.P.P [1946] A.C. 347.
.

24. Nissan v. Att.-Gen. [1970] A.C. 179.

25. Ex p. Mwenya [1960] 1 Q.B. 241.
26. Re Parliamentary Privilege Act 1770 [1958] A.C. 331.

The British Constitution 43

scope of individual constitutional conventions - controversies which
usually take place outside the courts of law- the views of modern writers
such as Jennings, Anson, Dicey, Maitland, Keith, E. C. S. Wade, Hood
Phillips, Amery, Mackintosh and others are frequently prayed in aid. On
issues of parliamentary privilege, Erskine May 27 is regarded as an excep-
tionally persuasive authority. It is fair to say that in the diffuse field of
constitutional law the opinions of authorities are resorted to more often
than in other branches of English law. They are a useful subsidiary source
of constitutional law in the broad sense of the term. In administrative
law cases the opinions of modem writers - especially those of the late
Professor de Smith - have come to be quoted in argument and are occasion-
of Community law, on
ally cited in judgments. In cases involving points
which few British judges would regard themselves as experts, recourse will
surely be made to the opinions of specialist writers.

Conventions of the constitution

There is no rule of statute or common law to the effect that there must be
a Prime Minister and a Cabinet, though legislation providing for the
payment of ministerial salaries rests on the assumption that these insti-
tutions do exist. But clearly the Prime Minister and the Cabinet are cardinal
features of the British constitution. They are creatures of convention, not
of strict law.
Again, as we have noted, the Queen has enormously wide powers, pre-
rogative and statutory, but she is obliged by convention to exercise these
powers on and in accordance with ministerial advice, save in a few very
special situations. This is the most important convention of the British
constitution. The main exceptions to the general rule will be considered
in chapter 4.
There are many other major conventions of the constitution, dealing
with relations between the Executive and the Legislature (for example,
the rules about ministerial responsibility to Parliament), relations between
the two Houses of Parliament (for example, the rule that money bills have*
to be introduced into the House of Commons), the working of each House
(for example, the rule that the Speaker of the House of Commons shall
behave impartially),, the civil service and the Judiciary.
It is obvious that some constitutional conventions are far more im-
portant than most of the statutory and common-law rules connected with
the British system of government. The convention that the Queen must
assent to bills duly passed is overwhelmingly more important than her

27. i.e. Sir Thomas Erskine May, Parliamentary Practice (I9th edn, 1976).

44 General Foundations
strictly legal prerogative power to withhold her assent. Since the rules of
strict law, in this context and many others, give a grotesquely misleading
picture of the rules actually observed, and observed on the assumption
that they are binding, constitutional conventions ought to be treated as
part of constitutional law.
At once we are in terminological difficulties. In one aspect conventions
are law; in other aspects they are not. Dicey was quite clear that they
‘
were not “laws” in the true sense of that word, for if any or all of them
were broken, no court would take notice of their violation’. 28 In other
passages he observed that laws were ‘rules enforced or recognized by
the courts’, whereas conventions were ‘a body not of laws, but of
constitutional or political ethics’, the ‘constitutional morality of the day’,
29
‘not enforced or recognized by the courts’.
30
Dicey’s distinctions between strict law and constitutional convention
were too clear-cut and have been severely criticized; 31 but they have
substance. 32 For instance, if the Queen were to refuse her assent to a bill
of which she disapproved, no court would deem the bill to be an authentic
Act of Parliament. If a Government, defeated on a vote of confidence in
the House of Commons, neither resigned nor advised a dissolution of
Parliament, no court would take cognizance of this gross breach of con-
vention by granting a declaration that any of the Ministers was not legally
entitled to exercise his office. No form of judicial redress is obtainable
purely for a breach of convention. And in the eyes of the courts, Parliament
is competent to legislate in unequivocal disregard of conventional limi-
33
tations on the exercise of its powers.
Distinctions of substance between constitutional conventions and rules
of strict law are well illustrated by the evolution of Dominion status within
the Commonwealth. By 1926 most of the self-governing Dominions were
in effect independent States, equal in status, for most purposes, to the
United Kingdom. They had achieved this status not by legislation but by
the development of conventions, many of which were formally recorded
(or created) in resolutions of Imperial Conferences. There remained a few

28. Dicey, op. cit., p. 27.

29. ibid., pp. 417, 422. See also Hood Phillips (1966) 29 Mod. L. Rev. 137.
30. The term aptly employed by Sir Kenneth Wheare in The Statute of Westminster
and Dominion Status (5th edn), ch. 1.
31. Notably by Sir Ivor Jennings, The Law and the Constitution (5th edn), ch. 3.
See also J. D. B. Mitchell, Constitutional Law (2nd edn), pp. 26-39.
32. For a subtle defence of the basis of the distinction, see Hood Phillips (1964) 8
journal of the Society of Public Teachers of Law (N.S.) 60. For an attempt to say the
last word, see Munro (1975) 91 L.Q.R 218.
.

33. Madzimbamuto v. Lardner- Burke [1969] 1 A.C. 645 at 722-3 (legislation dealing
with internal affairs of Southern Rhodesia).

The British Constitution 45

elements of formal inequality. Some of those (for example, the procedure
for appointing a Governor-General) could be and were removed by the
formulation of new constitutional conventions. Others could not be
removed by convention. In strict law the Dominions were still colonies.
They were prohibited by section 2 of the Colonial Laws Validity Act 1865
from legislating repugnantly to United Kingdom enactments extending to
them as part of their own law. Among these enactments were the Judicial
Committee Acts 1833 and 1844, under which the prerogative power of the
Crown to grant special leave to appeal from colonial courts to the Privy
Council was placed on a statutory footing. This power to give leave to
appeal and to hear appeals was not expunged by convention; and in 1926
the Judicial Committee of the Privy Council held 34 that the Canadian
Parliament Avas incompetent to abolish the appeal by special leave from
Canadian courts in criminal matters. The necessary legal authority could
be conferred only by United Kingdom legislation. Some of the Dominions
pressed for the enactment of enabling legislation, and Parliament passed
the Statute of Westminster 1931. This excluded the Dominions from the
definition of ‘colony’, abolished the repugnancy rule and empowered
Dominion Parliaments to legislate inconsistently with United Kingdom
35
legislation extending to their countries. Thereafter the Canadian Parlia-
ment was able to pass legislation abolishing criminal appeals to the Privy
Council. 36

The distinction blurred

These examples suggest that the distinction between law and convention
is reasonably clear. But in a number of contexts the distinction is blurred.

In particular, Dicey was exaggerating when he said that conventions were

‘not recognized’ by the courts. The courts do sometimes take cognizance
of conventions and use them as aids to interpretation. Thus, English
courts have occasionally supported their refusal to review the grounds
on which executive discretionary powers have been exercised by pointing
out that a Minister is responsible to Parliament for the exercise of the
power. 37 In one Privy Council appeal,.Canada’s accession to independence,

34. Nadan v. R. [192 6] A.C. 482.

Wheare, op cit., and R. McG. Dawson, The Develop-
35. ss. 1, 2, 11; see generally,
ment of Dominion Status 1900-1936; and ch. 30.
36. British Coal Corporation v. R. [1935] A.C. 500. See also Att.-Gen. for Ontario v.
Att.-Gen. for Canada [1947] A.C. 127 (abolition of appeals in civil matters; see below).
37. See, for example, Liversidge v. Anderson [1942] A.C. 206 (where the Home Secre-
tary was expressly required by regulations to make reports to Parliament); Carltona
Ltd v. Commissioners of Works [1943] 2 All E.R. 560; Robinson v. Minister of Town
and Country Planning [1947] K.B. 702.

46 General Foundations
 .

and the convention of equality of status recited in the preamble to the

Statute of Westminster, were primary reasons for so interpreting an
ambiguous section of the Canadian constitution as to empower the
Federal Parliament to abolish appeals to the Privy Council from all
Canadian courts in civil cases. 38 In another, more recent, appeal it was
contended that appeals from Ceylon courts had been impliedly abrogated
by the grant of independence, because the report of the Judicial Com-
mittee on such an appeal was issued in the form of an Order in Council
affecting the law of Ceylon. The Judicial Committee held 39 that although a
legislative Order in Council purporting to alter the law of Ceylon would
have been invalidated by the Ceylon Independence Act 1947, a judicial
Order in Council was, by convention, no more than the formal promul-
gation of a determination by a court of law which had not yet been
deprived of jurisdiction by the Parliament of Ceylon. Again, the High
Court of Australia has used constitutional conventions as an aid to
statutory interpretation, holding that United Kingdom amendments to
copyright legislation in 1928 and 1956 did not alter Australian law in the
absence of any indication that they purported to extend to Australia with
Australian concurrence; the original legislation passed by the United
Kingdom Parliament in 1911 had undoubtedly extended to Australia as
part of its law, but conventional limitations on the territorial competence
of the United Kingdom Parliament and Government had evolved since
that time. 40
These examples 41 show how constitutional conventions may materially
influence judicial decisions. In this sense they may be compared with
recitals in the preamble to an Act of Parliament. The terms of preambles
are not directly enforceable in a court, but the facts and purposes (and
42
occasionally conventions ) there set out may be used as aids to the interpre-
tation of ambiguous provisions in the main body of the Act. Alternatively,

38. Att.-Gen. for Ontario for Canada [1947] A.C. 127.

v. Att.-Gen.
39. Ibralebbe v. R. [1964] A.C. 900. Appeals from Ceylon (Sri Lanka) were termi-
nated in 1972.
40. Copyright Owners Reproduction Society Ltd v. E.MJ. (Australia ) Pty Ltd (1958)
100 C.L.R. 597; see Gray (1960) 23 Mod. L. Rev. 647; Bennion (1961) 24 Mod. L. Rev.
355. The amendment made in 1956, after Australia had adopted the Statute of West-
minster, was held moreover to be inoperative in Australia because it was not expressed
to have been made at the request and with the consent of the Commonwealth of
Australia, as was required by section 4 of the Statute. See further pp. 74-5.
41. See further, Ryder v. Foley (1906) 4 C.L.R. 422; Commercial Cable Co . v.
Government oj Newfoundland [1916] 2 A.C. 610.
42. Notably in the preamble to the Statute of Westminster 1931, reciting basic
conventions about equality of status in the Commonwealth. A preamble is part of an
Act and can be debated and amended during the passage of the bill. Each clause will
begin * Whereas .

The British Constitution 47

conventions may be compared with the Directive Principles of State
Policy, which are an integral part of the constitution of India but are
expressed not to be ‘enforceable by any court’; 43 they are nevertheless
used as guides to constitutional interpretation.
Some conventions, then, may be indirectly justiciable. And some rules
of strict law may be non-justiciable. The latter point can be illustrated in
constitutional and administrative law.

1. General duties to provide efficient services are cast by statute on public

may be
corporations administering nationalized industries. These duties
formulated in terms so broad that no person would be able to obtain a
judicial pronouncement that the corporation had failed to carry out its
44
duty. Sometimes the nationalization Act will state explicitly that these
general duties are not enforceable in any court of law.

2. Under the Parliament Act 1911, a money bill passed by the Commons
can be presented for the royal assent after one month although it has not
been passed by the Lords. The Act defines a money bill and provides that
a certificate given by the Speaker of the House of Commons that the bill
is a money bill shall not be questioned in any court. If the Speaker’s

certificate were based on an erroneous interpretation of the statutory

definition, no way of raising the issue before a court would be feasible,
unless possibly the error was so flagrant as to raise doubts as to the
Speaker’s good faith.
Examples could be multiplied. It is enough to say that non-compliance

with statutory norms not necessarily coupled with the possibility of

is

judicial sanctions, even the sanction of nullity.

3. There is 1 of the Northern Ireland Con-

the curious case of section
stitution Act 1973: \hereby affirmed that in no event will Northern
. . it is

Ireland . cease to be part of . . the United Kingdom without the con-

. . .

sent of the majority of the people of Northern Ireland voting in a poll held
for the purposes of this section . This reads like a particularly solemn
.

45
affirmation of a constitutional convention, binding on the United King-

43. Constitution, art. 37.

44. cf. Watt v. Kesteven C.C. [1955] 1 Q.B. 408 (duty of local education authorities
to have regard to the general principle that as far as possible children are to be
educated in accordance with parental wishes (Education Act 1944, s. 76) unenforceable
by aggrieved parents in legal proceedings). See also pp. 213-14.
45. See also Cmd 534 (1969) (N.I.), referring to the ‘clear pledges made by successive
United Kingdom Governments that Northern Ireland should not cease to be a part
of the United Kingdom without the consent of the people of Northern Ireland’
(§ 56 (1)). Section 1 of the 1973 Act replaced section I (2) of the Ireland Act 1949 which
had referred to ‘the Parliament of Northern Ireland’; that Parliament was abolished
'

by section 31 of the 1973 Act and the formula cited in the text was enacted. For an

48 General Foundations
dom Parliament and Government but placed in the main body of an Act
instead of in the preamble. Here the distinction between strict law and
convention not only lacks substance but is tenuous in the matter of form.
4. Written constitutions in other countries often embody non-justiciable
rules.Some are non-justiciable because the constitution says so. To this
category belong those provisions in a number of Commonwealth consti-
tutions requiring the Governor-General to act on ministerial advice. 46 In
the constitution of Ceylon, British conventions concerning the exercise of
discretionary functions by the Queen’s representative were incorporated
by general reference; and it was expressly stated that the question whether
these conventions had been observed was not to be inquired into by any
47
court. Was this constitutional provision not ‘law’? Are the Directive
Principles of State Policy in the Indian constitution (which are only
indirectly justiciable) and the corresponding statements of principle in the
constitutions of the Republic of Ireland and Malta not part of the law of
the constitution? And what is one to make of those constitutional pro-
visions, common enough in non-Commonwealth countries (for example,
France), which impose limitations on legislative competence but cannot be
the subject of adjudication because judicial review of the constitutionality
of legislation is not an acceptable doctrine?

Why not codify conventions ?

One may argue that the illustrations cited above are marginal or anomalous
cases which do not
significantly weaken the general proposition that con-
ventions are not directly enforceable in courts whereas obedience to rules
of strict law is directly enforceable through courts. This is broadly correct.
But why is a distinction between strict law and convention maintained at
all in the United Kingdom ? Why not
codify conventions in a strictly legal
form? After all, conventions and rules of strict law alike are binding rules.
The answers to these questions are not simple. The reasons for retaining
the distinction are various. In the first place, there is the constitutional
role of the monarch. Most of the main conventions of the constitution were
originally evolved in order to ensure that the monarch exercised his

argument that section 1 (2) of the 1949 Act was in law a redefinition of the meaning
of the United Kingdom Parliament, see Harry Calvert, Constitutional Law in Northern
Ireland pp. 23-33.
,

46. For example, Constitution of Malta (S.I. 1964, No. 1398, Schcd.), s. 86(4).
47. Jennings, op. cit., pp. 120-21 see also his Constitution oj Ceylon (3rd edn). Sir
;

Ivor Jennings was the main architect of the Ceylon constitution. See generally de
Smith, The New Commonwealth and its Constitutions , ch. 3, on methods of incor-
porating ‘conventional* rules into Commonwealth constitutions.

The British Constitution 49

prerogative powers on the advice of Ministers responsible to Parliament.
This end could be and was achieved by a gradual process in which royal
discretion was quietly eroded. Abrupt changes in the law should, it was
felt, be avoided unless the monarch behaved like James II. As long as the

monarch, played, or thought he was entitled to play, a significant role in

the making of policy decisions, it might have been politically imprudent to
urge that his dwindling personal influence should be attenuated by
statutory restrictions, for example, by requiring him to act on the advice
of the Privy Council or the incipient Cabinet or a named Minister. No
obvious harm was done by leaving the monarch with wide prerogative
powers exercisable in strict law in his personal discretion; and unnecessary
friction could have been caused by trying to take them away, particularly
as long as a large section of the general public thought of the monarch as
the executive head of government. A prerogative power might be converted
into a statutory power or duty exercisable under prescribed conditions,
but these conditions would not include an obligation to act on ministerial
advice. New statutory powers and duties could be vested in the monarch,
the Crown in Council or a named Minister without breaking away too
blatantly from historical tradition. And the tradition was not valueless.
To involve the monarch personally in the making of important decisions
on matters of State lent greater dignity to the business of government; and
there were exceptional situations, not easily definable, where the monarch’s
personal views ought to be taken into account, or even to prevail in a time
of constitutional crisis. Even today, time-honoured formal tradition is not
easily eradicated unless there are obvious reasons why it should be. If
there is urgent pressure for clarification or change (for example, in Com-
monwealth affairs), conventions may be explicitly set down as conventions
in their existing or a modified form, or rules of strict law may replace them.
Secondly, it would be difficult or even harmful to define a number of
important conventions. For example, some of the conventions about
ministerial responsibility or the working of the Cabinet system are either
blurred or experimental. Codification would purchase certainty at the
expense of flexibility; informal modifications to keep the constitution in
touch with contemporary political thinking or needs would be inhibited. 48
Evolution by conventions is still needed in countries with written consti-
tutions. In some contexts the rules ought not to be crystal clear. Clarification
would tend to stultify one purpose of conventions - keeping the consti-

48. This was one of the reasons why the Radcliffe Committee on Ministerial Memoirs
(Cmnd 6386 (1976)) rejected the proposition that the rules concerning the publication
of former Ministers’ autobiographies or diaries should be put into statutory form.
Instead it recommended that the rules should be drawn to Ministers’ attention, and
amended as needs be, by the Prime Minister. See further below pp. 169-70.

50 General Foundations
.
 tution up to date. Again, a situation may arise in which a convention
ought, in the public interest, to be waived ; waiver would be more difficult
if the convention were set down in unambiguous language. These are, of
course, admissions that many conventions are significantly different from
typical rules of strict law.
is regularly observed, there is no
Thirdly, as long as a conventional rule
apparent reason for codifying it: 49 Lay peers regularly comply with their
conventional obligation not to present themselves to sit with the Law
Lords to hear an appeal in the House of Lords; the Speaker of the House
of Commons regularly behaves impartially. 50 If these conventional rules
were to be broken, they could simply be restated in formal terms or super-
seded by statutory rules. In 1909 the House of Lords disregarded its
somewhat vague conventional duty to defer in the last resort to the will
of the Commons; the sequel was the Parliament Act 1911, redefining
relationships between the two Houses on a statutory basis.
Nevertheless, it is unsatisfactory that the content, and indeed the very
existence, of some of the most important conventions should be inde-
terminate. There is no consensus of opinion on the conventional powers of
the Queen to remove a Prime Minister, 51 to require a dissolution of Parlia-
ment or to refuse a request for dissolution. Clarification may be brought
about by the march of events in a time of political turbulence; but the
Queen may then be criticized for having acted ‘unconstitutionally’ or for
having failed to discharge her constitutional duty to act; she will be
unable to answer back, and those who will speak for her may have to
reply on dubious precedents, debatable opinions of writers, and principles
deduced from a concept of the constitutional system with which some are
bound to disagree. An authoritative statement, prepared by an expert
body, of the conventions regulating the constitutional functions of the
monarch might therefore be useful, difficult though it would be to formu-
late. But if such conventions were to be codified, they ought not to be made
directly justiciable, 52 even if they were written into an Act of Parliament

49. One could equally say that there is no sound reason for not codifying it. The
reasons, sound or unsound, are characteristic inertia masquerading as veneration for
unwritten constitutional tradition, and the absence of political pressure for change.
50. There are customary rules of the House of Commons directing the manner in
which he is to use his casting vote in the event of a tie.
51. For the removal in 1975 by the Governor-General of Australia of his Prime
Minister, see below p. 102. According to the Australian Chief Justice, this gave rise to
no justiciable or potentially justiciable issue.
52. For discussion of this matter, see H. V. Evatt, The King and his Dominion
Governors (2ndedn), chs. 29-33; Geoffrey Marshall and G. C. Moodie, Some Problems
of the Constitution (5th edn), pp. 34-6; de Smith, op. cit., pp. 86-7; K. J. Keith (1967)
16 LC.L.Q, 542.

<£- i <o 12- The British Constitution 51

j/L-Vr?
or a new British constitution. Experience in new Commonwealth countries
has shown that whilst the embodiment of such rules in the texts of
constitutions makes for greater certainty, so that people have a clearer
idea of what may, must or cannot be done, the burden thrust upon the
courts when they are called upon to determine whether prescribed rules
have been complied with in a politically sensitive situation is liable to be
excessive. Whatever the outcome, the prestige of the Judiciary will prob-
ably suffer. If the rules of the game are to be set down, they do not require
the courts to decide whether, for example, a Prime Minister has been validly
dismissed. This is pre-eminently a question about the reins of power. If the
constitutionality of such an act is disputed, the controversy is unlikely to
be resolved by the pronouncement of a court. 53 However, clarification of
the rules by codification may reduce the area of potential conflict.
One point must be made to avoid misunderstandings. Some rules of
political behaviour, or standards of conduct in public affairs, have in fact
been ‘codified’, or promulgated in an authoritative form. For instance,
the principles governing the private financial interests that a Minister of
the Crown can properly retain after appointment can be found in a state-
ment by Sir Winston Churchill published 54
These principles
in 1952.
embody constitutional conventions because they state rules that ought to
be followed by Ministers; and enforced resignation would be the sanction
for breaking them. Each incoming Prime Minister gives his new team
written guidelines, but interpretation depends largely on the individual.
Some other assertions about what is right and proper in public affairs do
not enjoy the same degree of importance; or the standards of conduct they
lay down may be more elastic; or their original or continuing authority
may be disputed or the consequence of deviating from them may be no
;

more than adverse criticism from political opponents. It may therefore, be

,

doubtful whether such statements are to be regarded as embodying con-

ventions (or rules) at all. Nearly all discussions about the existence and
scope of the lesser constitutional conventions include arguments of dubious
authenticity.

53. Dismissals were held valid in Adegbenro v. Akintola [1963] A.C. 614 (Western
Nigeria) and invalid in Ningkan’s case [1966] 2 Malayan L.J. 187 (Sarawak). See,
on the latter case, Thio (1966) 8 Malaya L. Rev . 283; Keith (1967) 16 I.C.L.Q. 542.
The decision in the former case was reversed locally by a constitutional amendment
having retroactive effect, followed by the abolition of appeals from Nigerian courts
to the Judicial Committee. The decision in the latter case was accepted, but a state of
emergency was proclaimed, the constitution amended (validity upheld in Ningkan v.
Government of Malaysia [1970] A.C. 379) and the Chief Minister dismissed.
54, 496 H. C. Deb. 701-3 (25 February 1952); reproduced as Appendix 2 to the
Report from the Select Committee on Members’ Interests (H.C. 57 (1969-70)). See
also p. 180 and 910 H.C. Deb. 58-9 (written answers 27 April 1976).

52 General Foundations
Interrelationship between law and convention
Law and convention are closely interlocked. To quote Jennings, consti-
tutional conventions ‘provide the flesh which clothes the dry bones of the
law; they make the legal constitution work; they keep it in touch with the
growth of ideas’. 55 Conventions presuppose the existence of a framework
of strict law; they do not exist in a legal vacuum. For example, conven-
tional rules about the functions of the Cabinet Office presuppose the
existence of a Cabinet, which presupposes the existence of a Privy Council
and Ministers appointed by the Crown. In turn, some rules of aLrirt law
presuppose conventions. Statutes dealing with ministerial salaries pre-
suppose the existence of a Prime Minister, a Cabinet, Leaders of the
Opposition and party whips, though they do not define their functions. 56
And when Parliament gives Her Majesty powers of appointment to offices
of State and other statutory discretions, it acts on the tacit assumption that
she will use her powers only on ministerial advice.
Again, as we have seen, the line between strict law and convention is
sometimes uncertain. Legal duties are not always justiciable, and con-
ventions may be justiciable in so far as the courts use them as aids to
construction.
None of these comments is likely to be regarded as controversial. If,

however, one asks the question: Are rules of strict law and constitutional
conventions obeyed for similar reasons? problems at once arise.

1. Dicey contended that ‘ the sanction which constrains the boldest political

adventurer’ to obey a convention he might feel inclined to break was his

fear that breach would almost immediately bring him into conflict with
the courts and the law of the land. 57 Thus, if the convention that Parlia-
ment be summoned each year, or that a Government which has lost the
confidence of the House of Commons must resign or go to the country,
were to be broken, legal authority for collecting the most productive taxes,
for spending money and for maintaining and disciplining a standing army
would soon expire, for such authority is granted by Parliament only for a
year at a time. Since the Government would have to perform acts devoid
of legal authority. Ministers and officials would soon find themselves in
the dock or mulcted in damages. Obedience to conventions was therefore
buttressed by the sanctions of strict law.
The weaknesses of Dicey’s argument are familiar. Some political adven-
turers may indeed have been deterred from breaking certain conventions

55. The Law and the Constitution (5th edn), pp. 81-2.
56. See especially the Parliamentaryand other Pensions Act 1972; Ministerial and
other Salaries Act 1975; Parliamentary and other Pensions and Salaries Act 1976.
57. Dicey, op. cit., pp. 445-6.

The British Constitution 53

for fear of indirectly incurring legal sanctions; but who knows? The
boldest adventurer will (as Dicey himself conceded) carry out a coup d'etat
and defy the law. The not so bold is far more likely to be deterred by fear
of the political consequences - justified charges of unconstitutional con-
duct, public ridicule or odium, loss of office or even the precipitation of
revolution. Moreover, many conventions are not buttressed by the threat
of legal sanctions. If the Queen were to refuse her assent to a bill because
she disapproved of it, this could not entail breach of any legal rule; but it
might lead to changes in the law - the abolition of the power to refuse
assent, and imposition of statutory duties to exercise other royal dis-
cretionary powers on ministerial advice; or enforced abdication, or
abolition of the monarchy. If the majority in the House of Commons
voted to expel the Opposition, or if a lay peer were to insist on sitting with
the Law Lords,or if the Speaker were to make a party political speech in
the Commons, conventions would be broken and the consequences might
be very unpleasant for those concerned; but obedience to the existing
conventionsis not explicable in terms of legal sanctions.

2. Conventions are normally observed for a variety of mundane reasons

- force of habit, inertia, desire to ‘conform’, belief that it is ‘right’ to
obey them and wrong to disobey them because they are reasonable rules
or because they are part of a reasonable structure of rules which ought
to be preserved and upheld. In so far as they are observed by persons
involved in politics who feel inclined to break them, obedience can usually
be attributed to fear of disrepute and its political implications. Now, most
of us obey the criminal law for much the same set of reasons. 58 If, for
example, one finds a purse containing a large sum of money in the street,
one is likely to resist any temptation to appropriate and keep it because
one feels one ought not to behave in such, a way. If one’s decision to hand
it in to the police station is materially influenced by fear of being prose-

cuted and convicted for theft, the probability is that one will be more
concerned with the social disgrace involved in a publicized conviction than
with the prospect of being fined or sent to prison. The sense of obligation
and the fear of disagreeable consequences which tend to induce people to
comply with conventions are broadly similar to the corresponding feelings
which conduce to observance of the criminal law. There are, of bourse,
many people who will not feel any sense of obligation to return the purse,
who will be deterred from dishonesty only by the prospect of detection,
and who will fear imprisonment but not loss of social esteem. And some
politicians will cheerfully break a hallowed convention (for example, about
ministerial responsibility to Parliament) if they think they can carry it off

58. cf. Jennings, The Law and the Constitution (5th edn), Appendix -

54 General Foundations
without adverse personal repercussions. Again, some of us will break
certain rules of strict law, for example, speed limits on a clear road in a
built-up area, without compunction provided that a police patrol car is
not in the vicinity, because we do not feel a sense of obligation to obey the
rule to the letter. Awareness that a patrol car is clos$ behind us will slow
us down, not because we are overcome by a sense of moral obligation but
because we do not want to be stopped and perhaps have to pay a fine.
This is not a jurisprudential essay and these points will not be elaborated.
It is enough to repeat that the sense of legal obligation is often much the
same as the sense of obligation to obey constitutional conventions. One
difference between strict law and convention is that legal obligations r.r?
on the whole more complex, technical and exactly defined; another is that
where there are direct sanctions for breach, strictly legal sanctions tend to
be more specific and can be imposed by authoritative tribunals endowed
with powers of interpretation. These differences are not trivial. But are
they really fundamental?

Identification of constitutional conventions

If one can borrow from the vocabulary of H. L. A. Hart, constitutional

59
conventions, in so far as they impose duties, are primary rules of obli-
gation unaccompanied by an adequate apparatus of secondary rules of
60
recognition, interpretation (or adjudication) and ch§nge. And the tests
for the ascertainment of conventions are neither universally agreed nor,
when agreed, easily applied in a large number of marginal cases. Some
conventions are clear-cut; some are flexible; some are so elusive that one is
left wondering whether in fact the ‘convention’ is an ethereal will-o’-the-
wisp. It is often particularly hard to say whether a political practice has
61
crystallized into a constitutional convention and, if so, what is its scope.

1. Most of the conventions of the constitution are binding usages, under-

62
standings or practices. They are forms of political behaviour regarded
as obligatory. When or how does a non-binding usage become binding?
General acceptance by everybody whom the usage affects (the Queen,

59. confer powers - for example, the special powers of a Prime Minister.
Some
The Concept ofLaw, ch. 5. Hart does not himself characterize conventions in this
60.
manner. For him, a system of ‘primary rules’ unaccompanied by the ‘secondary rules*
referred to above is exemplified (p. 89) by the customary law of some simple (or
primitive) societies.
61. See Sir Kenneth Wheare, Modern Constitutions (2nd edn), ch. 8. cf. Marshall and
Moodie, op. pp. 26-31.
cit.,

62. See, for example, the discussion of the conventions on ministerial responsibility

(pp. 161-72).

The British Constitution 55

 Ministers,members of Parliament, civil servants or judges) and by auth-
on the constitution that there is an obligation to continue to behave
orities
in that way is, of course, the most satisfactory answer. Such an answer is
not always forthcoming. The difficulty can be illustrated by reference to
two major conventions. The first is that the Queen is obliged to assent to a
bill of which she personally disapproves, unless presumably she is advised
by the Cabinet to withhold her assent. The last time the royal assent was
refused was in 1708 Queen Anne was not prepared to agree to the creation
:

of a Scottish Militia. But a century later it was still thought imprudent to

support bills for the removal of the disabilities attaching to Roman
Catholics, on account of George Ill’s personal objections. In 1829 George
IV grudgingly gave his assent to such a bill; this can be regarded as an
unequivocal normative (or rule-constitutive) precedent, the balance of the
constitution having shifted away from independent royal discretion; but
in the years between, who can say when usage had hardened into con-
vention? Secondly, it is a convention that the Prime Minister should be
chosen from the House of Commons (or from among persons elected to
the House if a change of Prime Minister becomes necessary as a result of a
General Election). The last Prime Minister to sit in the Lords was Lord
Salisbury in 1902. In 1911 the powers of the Lords in money matters were
reduced to vanishing point and their right to reject other Commons’ bills
was confined to a suspensory veto. It was, therefore, arguable that there-
after the Prime Minister had to be chosen from the ranks of the Commons.
The question did not arise till 1923, because the most suitable candidates
were all members of the Commons. But in that year a vacancy arose
because of Bonar Law’s resignation on grounds of grave ill-health; the
most eligible candidate appeared to be Lord Curzon, but Stanley Baldwin
was appointed by the King instead, ostensibly on the ground that since
the Labour Party, which was by then the main Opposition party, was
almost unrepresented in the Lords, the office ought to go to a commoner. 63
This appeared to be a normative precedent: the King had passed over
Curzon because he thought he was obliged to do so, and there were good
reasons for his choice. If the King had not thought himself obliged so to
act - if, for example, he was influenced in his choice of Baldwin by his
awareness of Curzon’s unpopularity among sections of the Conservative
Party, 64 or if a memorandum of advice, heavily emphasizing the unsuit-
ability of Curzon, was thought by the King to be an accurate statement of
Bonar Law’s views, although the memorandum was in fact composed by
another and had put the case far more strongly than Bonar Law would

63. See Sir Harold Nicolson, King George V, pp. 375-9.

64. As L. S. Amery indicated in his Thoughts on the Constitution (2nd edn), pp. 21-2.
See also Kenneth Rose, Superior Person (1969).

56 General Foundations
 ever have put it
65 - this could still have been cited as a persuasive precedent
for the existence of such a convention, given the shift in the balance of the
constitution since 1902. But there would have been more room for argu-
ment; for the establishment of a new convention would then have to be
inferred mainly from propositions about what was necessary for the proper
working of the constitution. 66
2. What if there is substantial disagreement as to the existence or content
of a convention? In 1940 both George VI and Neville Chamberlain would
have preferred Lord Halifax to Winston Churchill as Chamberlain’s
successor. Here it is possible to assert that they were mistaken in thinking
that such an appointment would have been constitutionally proper, even
if Churchill had been compliant - and fortunately he*was not. But if such
a view could be seriously entertained on a point which by that time was
clearly covered by convention, one must accept that divided counsel may
be heard on a great many other, more controversial issues; and that
personal inclination and political expediency may well be determining
factors. Academic authorities on the constitution enjoy no immunity from
partisan sentiment; in the Irish home rule crisis in 1913 both Dicey and
Anson, active opponents of the Liberal Government, expressed manifestly
unacceptable views on the conventional powers of the King to override his
Ministers. 67 And even when an authority on the constitution is able to
adopt a more detached attitude, the materials available to him about the
precedents may be inadequate - political and royal biographies are the
best sources but are not always timely or comprehensive - and opinions
on what rules are necessary for the working of the contemporary consti-
65. See Robert Blake, The Unknown Prime Minister, pp. 517-27; Thomas Jones,
Whitehall Diary , vol. 1, pp. 235-6. See further, on this difficult issue, Robert Rhodes
James, Memoirs oj a Conservative (1969), pp. 150-66; Keith Middlemas and John
Barnes, Baldwin (1969), pp. 158-69. Probably the truth of the matter will never be
known; there are discrepancies in the accounts revealed. Bonar Law did not wish
to be and was not consulted. Balfour, whom the King consulted, advised against
appointing Curzon. See Kenneth Rose, op. cit., pp. 381-5. J. C. C. Davidson, an
influential Conservative backbencher, who wrote, but did not sign, the memorandum,
and Colonel Waterhouse, Bonar Law’s private secretary, who conveyed it to Lord
Stamfordham, the King’s private secretary, were markedly hostile to Curzon. Whether
a misunderstanding occurred, or whether there was any misrepresentation as to the
source of the views expressed in the memorandum, is not entirely clear. Perhaps that
incident was unimportant. Lord Salisbury, a Conservative elder statesman, recom-
mended Curzon. Middlemas and Barnes (op. cit., p. 165) assert that Stamfordham
himself then ‘telephoned to the King and strongly recommended him to send for
Curzon*. Possibly Balfour’s was the decisive voice. He disliked Curzon but apparently
put the case against him to the King solely on the grounds of his peerage. The King
made up his mind same day to send for Baldwin.
the
66. See further Marshall and Moodie, op. cit., pp. 30-34.
67. See Jennings, Cabinet Government (3rd edn), Appendix 3.

The British Constitution 57

tution can reasonably differ. Differences of opinion
' among practising
politicians as to the scope and very existence of the conventions they ought
to observe are, of course, both frequent and unreasonable.
3. A convention can be created without any background of pre-existing
usage. It can come into being (a) by express agreement, or (b) by a uni-
lateral undertaking, or (c) by a decision imposed by
within a limited field,

the Prime Minister or adopted by the Cabinet for its own regulation. For

example, (a) it was agreed at an Imperial Conference in 1930 that in future

the Governor-General of a Dominion should be appointed by the Crown
exclusively on the advice of the Dominion Government concerned and that
the United Kingdom Government would not even have a formal part to
play in such an appointment, (b) In 1949, when Eire left the Common-
wealth and became the Republic of Ireland, the United Kingdom Govern-
ment and Parliament undertook not to exclude Northern Ireland from the
United Kingdom without the consent of the Northern Ireland Parliament,
(c) In April 1968 Mr Harold Wilson appointed a Parliamentary Com-

mittee of the Cabinet, endowing it with very extensive authority, and

delegated wider executive powers to existing Cabinet committees. These
changes were designed mainly to streamline decision-making by restricting
the range of matters which individual Ministers could bring before the full
Cabinet. Ministers were obliged to accept the new procedures if they
wished to remain in the Government. It seems reasonable to regard them
68
as temporary constitutional conventions.

4. Conventions may lose their binding force or change in content. So, of

course, may rules of strict law. But conventions tend to change in different,
and sometimes mysterious, ways.
Aconvention established by express agreement may be superseded or
modified by agreement. Constitutional conventions share this charac-
teristic with conventional rules of international law. For example, the con-

vention relating to the appointment of Governors-General of Dominions

on local advice was understood to extend, by necessary implication, to
the removal of Governors-General, and to the appointment and removal
of Governors-General of newly independent Commonwealth countries;
but at the Mauritius Constitutional Conference in 1965 it was agreed that
when Mauritius became independent, the Government of Mauritius
would not advise Her Majesty to remove the Governor-General (in whom
the constitutionwould repose a number of unusual and important personal
discretionary powers) except on grounds of medical incapacity upon the

68. See also pp. 60, note 77, 168 on the 1975 suspension of collective responsibility
towards policy on continued membership of the EEC for the duration of the referendum
campaign.

58 General Foundations
 report of an independent tribunal appointed by the Chief Justice. 69 In this
instance the general convention remained, subject to an exception.
Again, decisions by the Prime Minister or the Cabinet about the manner
which the Cabinet is to operate may be superseded by new decisions.
in
But perhaps conventions of this sort ought to be put into a special category
in that (like some of the sessional orders of the llouse of Commons) they
are understood to be experimental, though undoubtedly binding until they
are altered or discarded in the accepted manner. Judicial precedents are
also binding till they are authoritatively reversed, overruled or disapproved.
We do not regard them as non-binding merely because their authority may
be ephemeral, unless it is clear that they are based on a wrong principle.
Aconvention may, alternatively, lose binding force because of a major
change in circumstances. In 1961 the United Kingdom Government
agreed that it would be contrary to convention for Parliament to legislate
for Southern Rhodesia on any matter within the competence of the
Southern Rhodesian Legislature without the consent of the Southern
Rhodesian Government. 70 In 1965 the Government of Southern Rhodesia
made a unilateral (and unlawful) declaration of the colony’s independence.
The United Kingdom Parliament immediately reasserted plenary legis-
Southern Rhodesia. 71 This could not reason-
lative authority in relation to
ably be construed as a breach of convention; the survival of the convention
presupposed the continuance of a constitutional relationship which the
Government of Southern Rhodesia had repudiated. 72 Problems of inter-
pretation may arise where changes in circumstances are less dramatic. For
example, on Harold Macmillan.’s resignation from the office of Prime
Minister on grounds of ill-health in 1963, the Queen invited Lord Home
to form a Government as his successor. Home was known to be the most
acceptable candidate to the Conservative Party; but what of the con-
vention that the Prime Minister could not be a member of the Lords? 73
A few months previously, Parliament had passed an Act under which it
had become possible for Lord Home to disclaim his hereditary peerages. 74
He promptly disclaimed it, became Sir Alec Douglas-Home, and obtained
69. Cmnd 2797 (1965),
p. 8. This convention was not written into the constitution.
70. Cmnd1399 (1961), p. 3.
71. Southern Rhodesia Act 1965; see also the Southern Rhodesia Constitution
Order
1965 (S.I. 1965, No. 1952). For Northern Ireland (p. 58), see pp. 629-34.
72. cf. de Smith, op. cit., p. 42. See also note 33.
73. See pp. 58-60, 148-51.
74. Peerage Act 1963, passed in consequence of the campaign
waged by Lord
Stansgate (Anthony Wedgwood Bcnn). All peers by inheritance could disclaim
within
a year after the Act became law; thereafter only new peers by inheritance (or peers who
had inherited subject to infancy or another disability) could disclaim (s. 1). See further
p. 290.

The British Constitution 59

a seat in the Commons at a by-election shortly afterwards. Presumably
this change in the law was understood to have modified the convention to
the extent that a peer could become Prime Minister if he agreed to disclaim
his title and to try to obtain a seat in the Commons forthwith. If at the
time of Home’s appointment no such undertaking was offered or extracted,
his appointment would probably have been unconstitutional.
Conventions have also disappeared or been varied because they have
been disregarded with impunity and with general acquiescence. In this
respect they differ from all rules of strict law in this country except local
or mercantile customary rules. For example, before 1918 the decision
when to advise the monarch to dissolve Parliament had been taken by the
Cabinet as a whole. In November 1918 Lloyd George decided to advise a
dissolution on his own initiative. Cabinet colleagues not merely acquiesced
in this step but erroneously justified it by reference to nonexistent prece-
75
dents. Thus arose the modern convention that the decision to advise a
dissolution was for the Prime Minister alone, though it was still open to
the Prime Minister to discuss the matter with his colleagues, privately or
76
in a Cabinet meeting. Doubtless all conventions are binding, but some are
more binding than others. (The obvious retort is that the conventions about
advice to dissolve Parliament are of major importance.) The disappearance
of a convention in these circumstances might alternatively be rationalized
on the ground that it had atrophied unobserved, or had dwindled to the
status of a non-binding usage, compliance or deviation being equally
permissible. Whether a convention retains its binding force, and if so,
how much, is often demonstrable only by the empirical test of ‘break it
and see’. The outcome of such an experiment may still be equivocal;
breach may be represented, or interpreted after the event, as a mere ad hoc
waiver; 77 allegations of unconstitutional behaviour are frequently made
and thrust of day-to-day politics and are as often shrugged off,
in the cut
sometimes on the spurious ground that no binding convention on the

75. Jennings, Cabinet Government (3rd edn), pp. 417-19.

76. MrWilson was careful to obtain the agreement of senior colleagues before
tendering advice to hold the General Elections of 1966 (which Labour won) and of
1970 (which Labour lost): Wilson, The Labour Government 1964-1970, A Personal -
Record, pp. 201, 780-81.
77. Thus, the convention of collective ministerial responsibility, in so far as it
required Ministers not to disagree with Cabinet decisions in public, was expressly
waived by the Cabinet in 1975 to allow those Ministers who disagreed to say in public -
but outside Parliament - that they disagreed with the Cabinet’s recommendation that
the electorate should vote to remain in the EEC in the referendum held under the
Referendum Act of that year. Once the referendum result was announced full collective
responsibility was restored. This suspension was extraordinary but not unprecedented.
The National Government in 1932 adopted a similar device over its protectionist

60 General Foundations
matter had ever existed; 78 adverse pronouncements by constitutional
experts and editorial writers in the better informed daily and weekly jour-
nals are not endowed with the aura of prestige that surrounds the judg-
ments of the superior courts.
We arrive at a position where there is a clear c^se for differentiating
some conventions from most rules of strict law. When there are serious
doubts as to the scope, even the very existence, of a conventional rule, and
no adequate means of allaying those doubts, one cannot expect to find a
widespread sense of obligation to obey that rule. Appeals to the voices of
authority may evoke a Tower of Babel or the inscrutable muteness of the
sphinx. Appeals to precedent may be less convincing than appeals to
principle. Perhaps the most persuasive summing up is that ‘the crucial
questions must always be whether or not a particular class of action is
likely to destroy respect for the established distribution of authority and
whether or not it is likely to maintain respect for the constitutional system
by changing (or sustaining) the distribution of authority’. 79 This distri-
bution of authority implies the maintenance of limited monarchy, repre-
sentative government, responsible government and efficient government;
it implies also that constitutional rules must be compatible with the

realities of practical politics. Given the vagueness of these criteria, it is not

surprising that no attempt to list the conventions of the constitution in
1977 would command universal assent. If half a dozen constitutional
lawyers were separately to set down the conventions governing collective
ministerial responsibility, it would be astonishing if six identical sets of
answers were to be produced.

Replacement of conventions by statutory rules: a footnote

We have noted that many conventions could be codified in a statutory or

non-statutory form; and that Commonwealth constitutions often include
provisions on matters which in this country are regulated solely by con-
vention. 80 We
also observed that a loose convention about legislative
relations between the Lords and the Commons was replaced in 1911 by a

policies, but it a few months. See E. C. S. Wade, Introduction to the 10th

failed after
edn of Dicey, op. pp. clxxxix-cxc.
cit.,

78. cf. Dicey, op. cit., p. 441. This is the main single reason why identification of
conventions is so difficult. People who ought to be obeying conventions deny their
existence or unmake them by their disobedience.
79. Marshall and Moodie, op. cit., p. 32. See also Jennings, Cabinet Government
(3rd edn), ch. 1.

80. The Commonwealth countries include rules about

constitutions of the ‘older’
and parliamentary proceedings which in Britain are regulated by
financial legislation
convention or the standing orders ol the two Houses of Parliament.

The British Constitution 61

precise set of statutory rules. Writers occasionally mis-state the effect of
the Parliament Act by describing it as an enactment of constitutional con-
ventions. On the contrary, it was a of constitutional
partial supersession
conventions by rules of strict law. The other favourite example of the
‘enactment* of constitutional conventions is the Statute of Westminster
1931. What this Act did was

1. to recite, in the preamble , certain conventions about Dominion status;

2. to relieve the Dominions of legal incapacities attributable to the fact

that, before the Statute, they were colonies in strict law; and
3. to 4 of the Statute, that no future Act of the United
provide, in section
Kingdom Parliament was to extend, or be deemed to extend, to a Dominion
as part of its law unless the request and consent of that Dominion were
expressly declared in such an Act.

of section 4 is still disputable. 81 But alone among the

1

The exact legal effect

sections of the Statute of Westminster can it be compared to the enactment
of a convention. The corresponding convention was set out in the preamble.
no law made by the
It records ‘the established constitutional position* that
United Kingdom Parliament ‘shall extend to a Dominion as part of its
law otherwise than at the request and with the consent of that Dominion*.
Even section 4, therefore, does not precisely reproduce constitutional
convention; it embodies the substance of the convention but adds some-
thing to it.

81. See pp. 74-6.

62 Genera! Foundations
Chapter 3
Ultimate Authority
in Constitutional Law

Parliamentary sovereignty

The Queen in Parliament is competent, according to United Kingdom

law, to make or unmake any law whatsoever on any matter whatsoever;
and no United Kingdom court is competent to question the validity of an
Act of Parliament. Every other law-making body within the realm either
derives its authority from Parliament or exercises
it at the sufferance of

Parliament; cannot be superior to or even coordinate with, but must be

it

subordinate to Parliament. So has run the most fundamental rule, the

‘very keystone’, as Dicey put it, of constitutional law in this country. 1 It is
usually called the concept of parliamentary sovereignty. In this chapter
we shall have to consider how far this doctrine is affected by the United
Kingdom’s accession to the European Communities. For the moment, let
us assume that it remains intact.
Some writers dislike the term parliamentary ‘sovereignty’, and prefer
to use the word ‘supremacy’. ‘Sovereign’ and ‘sovereignty’ are words of
many meanings. 2 We sometimes speak of the Queen as the Sovereign with-
out attributing to her unlimited authority. We speak of sovereignty in
international law when we mean independence, or freedom from external
control; in this sense Australia is a sovereign State, but it does not have a
‘sovereign’ Parliament, because the powers of that Parliament are subject
to the constitution. Is the constitution, then, ‘sovereign’ in Australia? To
3
John Austin, the best-known British writer on sovereignty, every devel-
oped State had to have a ‘sovereign’, who made laws in the form of
commands which were habitually obeyed, and whose legal authority was
absolute, indivisible and illimitable. Obviously the location of sovereignty
within a federal constitutional system is, by this token, an unrewarding
4
pursuit. Others have defined the concept of sovereignty in different ways
at different periods and in different contexts. Dicey, for instance, referred

1. Introduction to the Study of the Law of the Constitution (10th edn), p. 70.
2. See F. H. Hinsley, Sovereignty .
3. The Province of Jurisprudence Determined.
4. For a subtle analysis, see Geoffrey Sawer, Modern Federalism ch. , 7.

Ultimate Authority in Constitutional Law 63

to the Queen Parliament as the legal sovereign and the electorate as the
in
political sovereign . 5 Clearly the
concepts of national sovereignty, parlia-
mentary sovereignty and popular sovereignty have little in common with
6
one another . Hence there is a case for jettisoning the word ‘sovereignty*
altogether as being too ambiguous. But to discard the term in favour of the
doctrine of ‘supremacy* of Parliament is not particularly helpful, if only

because the term conveys the suggestion that the House of Commons,
latter
or the Lords and Commons, as a matter of political or sociological fact,
are supreme within the State; and manifestly they are not. And so we shall
use the phrase ‘parliamentary sovereignty’, but to denote a legal concept
or group of concepts which do not necessarily carry any implication about
the effective seat of political power within the State.
How and when was this principle of the unlimited legislative competence
of Parliament established ? Was it established by Parliament itself ; or by
the courts; or by whom? And whence was derived the authority to lay
down such a principle? Such questions about the ultimate foundations of
constitutional law are not peculiar to the United Kingdom. They arise in
countries where the central legislature lacks an unbounded sweep of legis-
lative competence. What are the sources of authority for the validity of
the supreme constitutions in those countries ?

Foundations of the constitutional order

A written constitution is regarded as the primary source of legal authority

within a State. In the explanation of the Legislature’s power to make
it lies

laws, the Executive’s power to govern and administer, the Judiciary’s

power to adjudicate. But if we take one step farther, what is it that confers
this legitimating quality on the constitution? This question produces some
convoluted answers.
Take Commonwealth of Australia. Here the
the constitution of the
answer seems The constitution is valid because it was duly
fairly simple.

enacted by the United Kingdom Parliament, which had power to enact it.
Subsequent amendments to the constitution are valid because they have
been made in the manner and form prescribed by the constitution. In other
words, legal continuity has been preserved.
The case of Australia, however, is exceptional in the modem world. In
the large majority of independent states there has been, at one time or
another, a breach of legal continuity, and a constitution has been adopted
or changed in a manner unauthorized by the pre-existing legal order. This

5. Dicey, op. cit., p. 73.

6. But see p. 80 on the relationship between national sovereignty and parliamentary
sovereignty in the EEC context

64 Generai Foundations
 isalready true of a high proportion of the African states which have
become independent during the last decade or so. Since independence they
have had revolutions and coups d'etat often the constitutional instrument
;

has itself been abrogated and replaced, or suspended and modified, in a

manner precluded by the independence constitution. And a few countries
have deliberately chosen to adopt a new constitution peacefully but in a
manner unauthorized by the pre-existing constitution. This is an assertion
of legal nationalism, of what is called ‘constitutional autochthony’, 7
designed to demonstrate that the authority of the constitution is rooted in

native not derived from an imperial predecessor. Such a course has

soil,

been followed in Eire (the Republic of Ireland), India and now Sri Lanka
(Ceylon). A
constitution is adopted by a Constituent Assembly in the
name of the people, or presented to the people for their approval; it will
not receive the royal assent like normal constitutional amendments.
Take again the constitution of the United States of America. Since its
adoption in 1787 it has remained intact, apart from amendments duly
made in terms of the constitution. But was the constitution valid in the
first place, and if so, why? had unlawfully
In 1776 the Thirteen Colonies
declared their independence of Britain, and had repudiated the sovereignty
of the United Kingdom Parliament. 8 We, the People of the United States’,
‘

proceeded to ‘ordain and establish a constitution’. In fact it was formu-

lated at a convention consisting of delegates from the several states and
then ratified by the Congress. The name of the ‘sovereign’ People was
invoked to confer upon the constitution moral authority and binding force.
The vague concept that ultimate ‘sovereignty* resides in the ‘people’ is
widely acceptable because of its political overtones. Even where a consti-
tution has been overturned from above or below by manifestly illegitimate
means, it is commonplace for the de facto holders of power to assert that
they derive their mandate from the people, because it is awkward to be
stigmatized as an undemocratic usurper. And by producing a constitution
approved by or on behalf of the people, the accolade of legitimacy is
achieved. Or is it?
one thing to say that government should rest on the consent of the
It is

governed; it is another thing to proclaim that a constitution has acquired

the force of supreme law merely because it has obtained the approval of
an irregularly convened Constituent Assembly or of, a majority of the
electorate or both. Yet to assert that all constitutions (or constitutional

7. Wheare, Constitutional Structure of the Commonwealth ch. 4. ,

8. The United Kingdom Government recognized the independence of the United

States in 1783, but the American Colonies Act 1766 (the Declaratory Act), reiterating
the paramount sovereignty of the United Kingdom Parliament, remained on our
statute book till 1964.

Ultimate Authority in Constitutional Law 65

 amendments) procured in a manner inconsistent with the pre-existing legal
order are legally invalid will land one in a morass of absurd and insoluble
difficulties. If the constitution of the United States is a nullity,

then presumably only the United Kingdom can validate (with retroactive
effect) the millions of governmental measures and judicial decisions
taken in that country since independence. This is plainly ridiculous,
for nobody doubts States became an independent
that the United
State in international law before the end of the eighteenth century. In any
case, whence did the United Kingdom Parliament derive its omnicom-
petence? In July 1688 James II dissolved his Parliament. In December he
fled the country, having dropped the Great Seal of the Realm in the Thames
a few days earlier. William of Orange, having reached London, met groups
of peers, former members of Parliament and other notables; they advised
him that elections should be held in the boroughs and counties. The
Convention of Lords and ‘Commons’ met in January 1689, and next
month offered the Crown to William and Mary jointly, subject to con-
ditions set out in a Declaration of Right. The offer having been accepted,
9
the Convention passed an Act asserting that it was Parliament, and then
enacted the Bill of Rights, incorporating the Declaration of Right. Clearly
the Convention ‘Parliament’ had been irregularly summoned; its affirm-
ation of its own legal authority carried the matter no farther; there had
been no King from December 1688 (assuming that James II was deemed
to have abdicated or to have forfeited the Crown) till February 1689;
William III had no hereditary legal title to the throne and therefore had no
authority to assent to bills. 10 Has every purported Act of Parliament since
1688 been a nullity? Is a Stuart still the rightful King?
Once questions such as these are asked, 11 one must acknowledge that in
certain circumstances a breach of legal continuity, be it peaceful or accom-
panied by coercion and violence, may have to be treated as superseding
the constitutional and legal order and replacing it by a new one. Legal
theorists have no option but to accommodate their concepts to the facts of
political life. Successful revolution sooner or later begets its own legality.
. If, as Hans Kelsen has postulated, the basic norm or ultimate principle

underlying a constitutional order is that the constitution ought to be

9. Crown and Parliament Act 1689.

10. cf. F. W. Maitland, Constitutional History of England pp. 283-5; Taswell-
,

Langmead’s English Constitutional History (11th edn), pp. 445-59.

11. One possible answer, deducible from rationalizations ot late medieval practice
when usurpations of the throne were not uncommon, is that William became King
de jure after he had dissolved the Convention ‘Parliament’ and the new Parliament of
1690 had validated the legislation passed by the Convention. As a matter of State
necessity (see p. 68) a de facto King had been regarded as competent to summon
a lawful Parliament. We are indebted to Dr F. M. Brookfield for this suggestion.

66 General Foundations
 obeyed, 12 then the disappearance of that order, followed by acquiescence
on the part of officials, judges and the general public in laws, rules and
orders issued by the new holders of power, will displace the old basic
norm or ultimate principle and give rise to a new one. 13 Thus, might
becomes right in the eye of the law.
This is a persuasive a
rationalization of the legal consequences of
successful revolution, like the rebellion of theAmerican colonists or the
English Revolution of 1688. It does not, however, answer all questions. It
offers a description, not a prescription. It does not dictate what attitude
judges and officials ought to adopt when the purported breach of legal
continuity takes place. However, in recent years judges in Pakistan, 14
Uganda 15 and Rhodesia 16 seem to have proceeded on the assumption that
they have to accept a successful revolution as a law-constitutive fact if
they remain in office. 17
Here we are beginning to stray far afield. The argument can be sum-
marized in this way: sooner or later a breach of legal continuity will be
treated as laying down legitimate foundations fora new constitutional
order, provided that the ‘revolution’ is is, however, no
successful; there
neat rule of thumb available to judges during or immediately after the
‘revolution’ for the purpose of determining whether the old order survives
wholly, in part or not at all. It so happened that the Revolution of 1688
gave a clear pointer to the Judiciary. There was a suspension of business
in the courts, and after the throne had become vacant new judges had to
be appointed because of a ‘demise of the Crown’. These appointees were
not at all likely to call the validity of the regime in question. 18 After a while
(at the latest, after the failure of the Jacobite revolt in 1715) it would have
been merely silly for a judge or commentator to deny that the Bill of Rights
1689 and other legislation passed after the Revolution were valid. Efficacy
12. Pure Theory oj Law (2nd edn, transl.), p. 201; General Theory of Law and State,
p. 115.
13. General Theory of Law and State p. 118. See also H. L. A. Hart, The Concept
,

oj Law, pp. 114—16, 118-19, for a similar but not identical formulation.
14. The State v. Dosso P.L.D. 1958 S.C. 533. But in 1972 the court held that the case
had been wrongly decided: Jilani v. State oj Punjab P.L.D. 1972 S.C. 139.
15. Uganda v. Prison Commissioner ex p. Matovu [1966] E.A. 514.
,

16. P.v. Ndhlovu 1968 (4) S.A. 515.

17. There is now a substantial body of legal literature on the problems arising from
these and similar cases. Most of the articles are referred to in Dennis Lloyd, Introduction
to Jurisprudence (3rd edn), ch. 7 A. W. B. Simpson (ed.), Oxford Essays in Jurisprudence
;

2 (Eekelaar), 3 (Finnis).
(1973), chs.
18. And in 1689 the Commons committed two former King’s Bench judges,
Pemberton and Jones JJ., to prison for a decision prior to the Revolution (see Jay v.
Topham (1689) 12 St. Tr. 821), in which they had overruled a plea to the jurisdiction
and given judgment against the Serjeant at Arms for an arrest carried out on the
orders of the House. This was held to be a breach ol the House’s privileges.

Ultimate Authority in Constitutional Law 67

and acquiescence bad established a new basis for legality. The particular
circumstances in which the Revolution of 1688 took place, and its im-

mediate practical consequences, laid a secure foundation,' moreover, for

judicial acceptance of the doctrine of absolute parliamentary sovereignty.
The doctrine grew out of a particular state of affairs. fundamental A
change of a political nature may bring about a fundamental change in
legal doctrine.

The concept of necessity

One other comment must be made. In some situations where unconsti-
tutional action has been taken by persons wielding effective political
power, it is open to a judge to steer a middle course. He may find it possible
to assert that the framework of the pre-existing order still survives, but
that deviations from its norms can be justified on grounds of necessity.
The principle of necessity, rendering lawful what would otherwise be
unlawful, 19 is not unknown to English law; there is a defence of necessity
(albeit of uncertain scope) in criminal law, 20 and in constitutional law the
application of martial law is but an extended application of this concept.

But the necessity must be proportionate to the evil to be averted, and

acceptance of the principle does not normally imply total abdication from
judicial review or acquiescence in the supersession of the legal order; it is

essentially a transient phenomenon. State necessity has been judicially

accepted in recent years as a legal justification for ostensibly unconsti-
tutional action to fill a vacuum arising within the constitutional order in
Pakistan, 21 Cyprus,22, Rhodesia23 and Nigeria. 24 To this extent it has been
19. See generally Glanville Williams (1953) 6 Current Legal Problems 216.
20. cf. J. C. Smith and Brian Hogan, Criminal Law (3rd edn), pp. 157-64; P. R.
Glazebrook [1972 A] Camb. LJ
. 87; Law Commission, Working Paper No. 55, 1974,

pp. 20-39.
21. Special Reference No. 1 of 1955 [1955] 1 F.C.R. 439; Sir Ivor Jennings, Consti-
tutional Problems in Pakistan. For a somewhat different approach to this principle, see
Jilani's case (note 14, above).
22. Att.-Gen. of the Republic v. Mustafa Ibrahim (1964) Cyprus Law Reports 195;
de Smith Annual Survey of Commonwealth Law 1965 (ed. Wade), pp. 3, 76-8.
in
23. Madzimbamuto v. Lardner-Biprke 1968 (2) SA. 284, a decision of the Rhodesian
Appellate Division given before the court was prepared to recognize the success of the
rebellion as fully legitimating the de facto Government; cf. note 16 above. On appeal
the Privy Council (Lord Pearce dissenting) rejected the principle of necessity as applied
by the Rhodesian judges [1969] 1 A.C. 645. However, it should not be inferred that
the principle has no application at all in constitutional jurisprudence. Notwithstanding
Lord Camden C.J.’s famous dictum in Entick v. Carrington (1765) 19 St. Tr. 1030 at
1073, that ‘with respect to the argument of State necessity . . . the common law does
not understand that kind of reasoning*, such a principle was applied a few years later
by Lord Mansfield in R. v. Stratton (1779) 21 St. Tr. 1045 at 1224; see also Sabally and
N’Jie v. Att.-Gen. [1965] 1 Q.B. 273 at 293, per Lord Denning M.R.
24. Lakanmi and Ola v. Att.-Gen. (West), 24 April 1970, where the Supreme Court of

68 General Foundations
recognized as an implied exception to the letter of the constitution. And
perhaps it can be stretched far enough to bridge the gap between the old
25
legal order and its successor.

Parliamentary sovereignty surveyed

In its early days Parliament was a judicial as well as a law-making body.

It was the High Court of Parliament, supreme over other courts. But it
did not follow that its law-making competence was unlimited or unrivalled.
In the first place, the supremacy of the Crown in Parliament was rivalled
by the Crown acting outside Parliament. The Crown claimed and exercised
an autonomous prerogative power to make laws by ordinance or procla-
mation. Not until James I’s time do we find an unequivocal pronounce-
ment by the courts that the King could not change the general law of the
land by virtue of the prerogative. 26 The King, moreover, claimed power to
impose taxation incidentally to the exercise of prerogative powers (such
as the power to regulate foreign affairs including external trade, and the
power to take emergency measures for the defence of the realm) recognized
as being vested in him; and in two great constitutional cases of the seven-
27
teenth century, the Case of Impositions (1606) and the Case of Ship
28 -
Money (1637) the latter decided after the Case of Proclamations - the
courts upheld the validity of this ancillary taxing power. But the Bill of
Rights 1689 laid it down that the raising of money for the use of the Crown
by pretence of prerogative was unlawful. Again, the Crown had claimed -
and the courts upheld the claim within certain limits in cases decided in
167429 and 1686 30 - a prerogative power to dispense with the operation of
a statute for the benefit of an individual; but the Bill of Rights declared
that in future dispensations would be invalid. The Bill of Rights also
declared that the ‘pretended power of suspending of laws’ by prerogative
was unlawful; this was a reference to James ITs disastrous attempt to

Nigeria, rejecting the Government’s arguments, held that the military take-over in
January 1966 had been a manifestation of necessity, not a revolutionary breach of legal
continuity; and that fundamental rights under the pre-existing constitution were still in
force save in so far as they were modified by the operation of necessity. This analysis
of the facts may be regarded as courageous but far-fetched.
25. See, for example, note 11. Necessity here becomes a ‘supra-constitutionaT
principle.
26. Case of Proclamations (1611) 12 Co. Rep. 74. This is perhaps the leading case in
English constitutional law.
27. Bate's Case (1606) 2 St. Tr. 371.
28. R. v. Hampden (1637) 3 St. Tr. 825.
29. Thomas v. Sorrell (1674) Vaughan 330.
30. Godden v. Hales (1686) 11 St. Tr. 1165.

Ultimate Authority in Constitutional Law 69

enforce the suspension of the statutes which' discriminated against Dis-
senters and Roman Catholics 31 - a premature experiment in religious
toleration, -albeit toleration with an ulterior motive, which precipitated a
Glorious Revolution against royal tyranny. Thus did Parliament effectively
dispose of the pretensions of the Crown to rival or subordinate its authority.
Since the Bill of Rights also changed the succession to the throne, so
that title to theCrown was itself dependent on parliamentary authority,
it would have been very difficult thereafter to contend that there were
legal bounds to the powers of Parliament. Earlier in the seventeenth
century there had been no dearth of juristic pronouncements on the
limitations on Parliament’s competence, though they jostled with others
32
proclaiming the transcendent and absolute authority of Parliament. In
James I’s time there were dicta to the effect that 'Acts of Parliament con-
33
trary to common right and reason, or making a man a judge in his own
34
cause, were void. That there were prerogatives inseparable from the
King’s person, so that no Act of Parliament could deprive him of them,
was generally conceded; 35 but one of those ‘inseparable’ prerogatives was
the dispensing power. After the Revolution of 1688 and the Bill of Rights -
the product of an alliance between parliamentarians and common lawyers
- these were but empty phrases. Faintly re-echoed by the words of Black-
36
stone in 1765, paying lip-service to the primacy of natural law, they had
long since ceased to have legal significance; for the judges had tacitly
accepted a rule of obligation to give effect to every Act of Parliament, no
matter how preposterous its content.
The omnicompetence of Parliament, at least in respect of persons,
matters and territory under the jurisdiction of the Crown, in the eyes of
the courts can be supported by numerous dicta and some decisions squarely
in point, and is illustrated by legislative practice. Attempts to impugn the
validity of Acts of Parliament because of inconsistency with rules of inter-

of the Seven Bishops (1688) 12 St. Tr. 183.

31. Set Trial
and other, are collected together and discussed m Geoffrey
32. Dicta, extra-judicial
Marshall's Parliamentary Sovereignty and the Commonwealth , ch. 5.
33. Dr, Bonham's case (1610) 8 Co. Rep. 114 at 118 per Coke C. J. Contrast Coke's
t

extra-judicial comment in vol. 4 of his Institutes p. 36: ‘of the power and jurisdiction
,

of Parliament, for making of laws in proceedings by Bill, it is so transcendent and

absolute, as it cannot be confined either for causes or persons within any bounds.’
34. Day v. Savadge (1614) Hob. 85 at 86, 87, per Hobart C. J.; see also the surprising
dicta by Holt C. J., in City of London v. Wood (1701) 12 Mod. 669 at 686-8. The
modern view of Parliament’s authority to make a man a judge in his own cause is stated
by Willes J., in Lee v. Bude and Torrington Junction Ply (1871) L.R. 6 C.P. 576 at 582.
35. D. L. Keir and F. H. Lawson, Cases in Constitutional Law (5th edn), pp. 77,
78, 87, 93. 96.
36. Commentaries , i, p. 41 (laws are invalid if contrary to the law of nature). Black-
stone’s words were taken seriously in the North American colonies.

70 General Foundations
 .

national law have been rejected. 37 When a taxpayer challenged the validity
of assessments made under a Finance Act on
the ground that they were
directed partly to an unlawful purpose (the manufacture of nuclear
weapons with a view to their possible use) it was held that even if such a
purpose were contrary to international law:

What the statute itself enacts cannot be unlawful, because (it) is the highest form
of law that is known to this country. It is the law which prevails over every other
form of law, and it is not for the court to say that a parliamentary enactment . .

38
is illegal.

Parliament has in fact passed retroactive penal legislation, 39 prolonged

itsown existence, transformed itself into a new body by the Acts of Union
with Scotland and Ireland, repealed and amended provisions of those
Acts which were to have permanent effect, 40 altered the procedure for
making laws (under the Parliament Acts) and followed the new procedure,
and changed the succession to the throne (by the Bill of Rights, the Act of
Settlement 1701, and His Majesty’s Declaration of Abdication Act 1936).
The courts will endeavour to construe Acts of Parliament so as to avoid a
preposterous result, but if a statute clearly evinces an intention to achieve
the preposterous, the courts are under an obligation to give effect to its -

41
plain words. The safeguards against the enactment of such legislation are
political and conventional, not strictly legal.
37. See, for example, Mortensen v. Peters 1906 14 S.L.T. 227; Cheney v. Conn
[1968] 1 W.L.R. 242. Similarly, the Crown in the exercise of its prerogative power
to delimit the extent of territorial waters is not bound by international law: Post Office
v. Estuary Radio Ltd [1968] 2 Q B. 740 at 757. But there is a rebuttable presumption
that neither Parliament nor the Crown intended to violate a treaty or other rule of
international law (ibid.). Sco also p. 130.
38. Cheney v. Conn [1968J 1 W.L.R. 242 ut 247, per Ungocd-Thomas J. Sco also
jR. v. Jordan [1967] Crim L. Rev. 483 (an unsuccessful attack by Colin Jordan on the
.

constitutional validity of the Race Relations Act 1965); Madzimbamnto v Lardner~

Burke [1969] 1 A.C. 645 at 723; Blackburn v. Att.-Gen. [1971J 1 W.L.R. 1037 ai io*i,
per Salmon L .J.
39. An Act of 1541 enabled Lady Rocheford, an accessory to Catherine Howard's
adultery, to be tried and executed for treason although she had become insane after
arrest: Nigel Walker, Crime and Insanity in England pp. 183-4. ,

40. An attempt to impugn the Irish Church Act 1869, which had changed an un-
alterable provision of the Act of Union with Ireland by disestablishing the Church of
Ireland, failed in Ex p . Canon Selwyn (1872) 36 J.P. 54. This decision is criticized, on
the ground that the Act of Union with Ireland was a constituent Act, limiting the
competence of the United Kingdom Parliament, by Harry Calvert, Constitutional
Law in Northern Ireland pp. 27-33. cf. J. D. B. Mitchell, Constitutional Law (2nd edn),
,

pp. 69-74.
41. See, however, the anomalous decision in Green v. Mortimer (1861) 3 L.T. 642
(private Act of Parliament treated as void because the court thought its provisions
were absurd).

Ultimate Authority in Constitutional Law 71

 Possible legal limitations on parliamentary sovereignty
Acts of Union

It can reasonably be argued that the Acts of Union with Scotland and
Ireland were constituent Acts, establishing a new United Kingdom Parlia-
ment and setting limits to its powers. 42 The case for still regarding the Act
of Union with Ireland 1800 in this light has been undermined by a series
of basic legislative changes. 43 The case for so regarding the Acts of Union
with Scotland 1707 is not so weak. Much water has indeed flowed under
the bridges since that time, but the position of the Established Church
in Scotland and the Scottish system of judicature, entrenched as funda-
mental and unalterable in the Articles of Union, remains largely intact. 44
Although the immunity of the surviving fundamental principles of the
Union from legislative encroachment by the United Kingdom Parliament
without Scottish consent 45 is probably to be regarded now as a matter of
convention rather than of strict law, one cannot be certain that Scottish
courts would take this view. In MacCormick v. Lord Advocate (1953) Lord
Cooper was of the opinion that violation of fundamental terms of the
Union would be unlawful but non-justiciable in a United Kingdom court. 46
,

No Scottish court has, however, held a public Act of Parliament to be void

since the Union.

Substantive content of legislation: the general rule

Parliament can undoubtedly delegate its powers, setting limits to the

authority of the delegate and retaining power to revoke the grant and a
concurrent power to legislate. But can it effectively deprive itself of power
to legislate on any matter or otherwise predetermine the future content of
its own legislation? There is authority for the proposition that it cannot.

42. See p. 25, above.

43. cf. note 40; the biggest changes up to 1977 were the establishment of the Irish
Free State (now the Republic of Ireland) and a subordinate Northern Ireland Parlia-
ment (abolished by the United Kingdom Parliament in 1973). Moreover, at the time
of the Union, Ireland was not unambiguously an independent State.
44. Subject to minor but significant exceptions. See the Universities (Scotland)
Acts 1853 and 1932.
45. But how is Scottish consent to be signified? Through the M.P.s for Scottish
constituencies and the Scottish peers at Westminster ? Through an ad hoc constituent
body?
46. 1963 S.C. 396 at 411-13. See also MacCormick [1972] Public Law 176-9;
T. B. Smith [1957] Public Law 99. In Gibson v. Lord Advocate (1975) Scots Law Times
134, Lord Keith refused an application to label s. 2(1) of the European Communities
Act 1972 null and void as contrary to the Act of Union of 1707. He reserved his
opinion on the situation which might be created if the United Kingdom Parliament
passed an Act purporting to abolish the Court of Session or the Church of Scotland*

72 General Foundations
 An Act of 1919 down a scale of compensation for owners of com-
laid
pulsorily acquired slum property, and it stated that ‘so far as inconsistent
with that Act [other statutory] .provisions shall not have effect’. These
. .

provisions were held to have been impliedly repealed to the extent that
they were inconsistent with other provisions in an Act of 1925, even if they
47
were intended (which was doubtful) to have permanent effect.
If there is a general rule that Parliament can do anything except bind its
own future action, this may be regarded either as a limitation of parlia-
mentary sovereignty or as a necessary characteristic of that sovereignty,
since sovereignty inheres in Parliament as a continuing representative
institution and not in one Parliament at a given moment of time. There is
another, more mundane, explanation of the rule, divorced from ideas about
sovereignty: public policy requires that no legislative body be competent
to frustrate its primary purpose by creating a vacuum save where expressly
authorized to do so - for example, by a written constitution. Put in this
form, the principle applies to non-sovereign legislatures. Local authorities
are incompetent to disable themselves from making a by-law on any
48
matter within their allotted field. And if this is an important factor
sustaining the rule, then there remains the possibility that parliamentary
omnicompetence can be restricted where the imposition of a fetter is
consonant with the proper functions of Parliament.

Territorial competence

The orthodox view is competent to make any law what-

that Parliament is

soever for any part of the world whatsoever, and that United Kingdom
courts are under an obligation to give effect to any such law. Courts in
territories subordinate to the United Kingdom are under a like obligation,
49
but not courts in foreign countries. The obligation of courts in inde-
pendent Commonwealth countries is debatable. 50
Now, it is quite clear that Parliament can attribute legal consequences
in United Kingdom law to acts done by aliens in foreign countries. It did
so recently by the Hijacking Act 1971. And it could presumably make it
51

47. Vauxhall Estates Ltd v. Liverpool Corporation [1932] 1 K.B. 733; Ellen Street
Estates Ltd v. Minister of Health [1934] 1 K.B. 590.
'

48. See, for example, Cory ( William) & Son Ltd v. dtp of London Corporation [1951]
2 K.B. 475.
49. Or, possibly, a court in a British protected state (which is not part of Her
Majesty’s dominions) where the Crown has only limited jurisdiction, in respect of an
Act of Parliament going beyond the Crown’s jurisdiction: Sir Kenneth Roberts-Wray,
Commonwealth and Colonial Law, 139-41.
50. See pp. 74-6.
51. See also Joyce v. D.P.P. [1946] A.C. 337; Statute of Treasons 1351 (treason can
be committed by alien in foreign country).

Ultimate Authority in Constitutional Law 73

an offence in United Kingdom law for a Frenchman to smoke in the streets
of Paris. 52 But it is at least doubtful whether, even in terms of United
Kingdom law, it has an unlimited competence to change the laws of inde-
pendent countries. Since it would not, in practice, assert such authority, 53
the question is unlikely to arise before a United Kingdom court. However,
untested assertions about Parliament’s omnicompetence are an inadequate
basis for ascribing to Parliament powers inconsistent with international
comity and common sense.

Total or partial abdication by Parliament

If the United Kingdom Parliament were to proceed to liquidate itself by

passing an Act transferring its new supranational European
functions to a
body or distributing those functions among (say) new Parliaments for
England, Scotland, Wales and Northern Ireland, it would be absurd to
suggest that a notional United Kingdom Parliament existed and that
still

it could resume its any time and continue to exercise sovereign

identity at
authority. Because this would be absurd, Parliament must be accepted as
having the power to abdicate by extinguishing itself, thus ‘committing
suicide’. But what if Parliament continued to exist but purported to give
away part of its sovereignty to another country or to new legislatures
within the United Kingdom or to a supranational body? 54 Would this not
be as ineffectual as an attempt by Parliament to preclude itself from
repealing or amending a Licensing Act ? We shall consider this in three
contexts: (1) Commonwealth affairs; (2) adoption of a written consti-
tution; and (3) accession to the European Communities.

1-Independence in the Commonwealth

The most not the most illuminating, questions turn on the

familiar, but
legal effect of section4 of the Statute of Westminster 1931, 55 ostensibly
precluding Parliament from legislating for a Dominion unless the Act in
question recited the Dominion’s request and consent. Section 4 might be
interpreted as (a) laying down a rule for the construction of statutes but

Law and the Constitution (5th edn), pp. 170-71.

52. Jennings, The
one takes the view that on or soon after UDI, Southern Rhodesia
53. Unless
acquired the attributes of independent statehood; cf. Southern Rhodesia Act 1965;
Southern Rhodesia Constitution Order 1965 (S.I. 1965, No. 1952); Madzimbamuto v.
Lardner-Burke [1969] 1 A.C. 645; cf. R. v. Ndhlovu 1968 (4) S.A. 515. For the peculiar
position of the Australian states, see ch. 30.
54. cf. the controversy over the Irish Home Rule Bill in 1886: Marshall, op. cit.,

pp. 63-7; Anson (1886) 2 L.Q.R. 427.

55. See p. 62, and see also ch. 30 with particular reference to the states of Australia.

74 General Foundations
 (b)not imposing a fetter on the omnicompetence of Parliament because
merely prescribed the insertion of a particular form of words in an
(i) it
56
Act, and Parliament could not effectively bind itself in this way and (ii)
in any event the power of Parliament to make any law whatsoever for any
place whatsoever could not be surrendered. On tjhis last point, we have a
Privy Council dictum in a Canadian appeal supporting the view stated
58
above; 57 an equivocal decision of the High Court of Australia; and dicta
59
in a Privy Council appeal from Ceylon, and in South African cases
60
decided while that country was still in the Commonwealth, supporting a
more radical interpretation - that such a provision was a renunciation of
Parliament’s plenary authority to make laws for those countries otherwise
than in accordance with the requirement laid down by Parliament. (‘Free-
dom once conferred cannot be revoked.’) 61 There is also an intermediate
position: that United Kingdom courts would be obliged to give effect to
Acts plainly intended to alter the law in Commonwealth countries despite
non-compliance with the statutory conditions, but that the local courts,
and on appeal the Privy Council (applying local law), would be entitled, or
even obliged, not to apply such an Act.
If one looks at independence Acts since 1960, the case for a traditionally
conservative construction becomes weaker; for the United Kingdom
Parliament has purported to renounce its power to legislate for those
T'
56. cf. Maugham L.J. in Ellen Street Estates Ltd v. Minister of Hcalih [193^] 1
at 597: Parliament ‘cannot bind itself as to the form of subsequent legislation’. It is
hard to know how much should be read into this dictum, since the question was
whether Parliament could effectively prescribe that a statute should be repealable or
alterable only by express words; held, it could not, even if had purported to do so,
which was doubtful.
57. British Coal Corporation v. R. [1935] A.C. 500 at 520 (‘the Imperial Parliament
could, as a matter of abstract law, repeal or disregard s. 4 of the Statute’),
58. Copyright Owners Reproduction Society v. E.M.I. ( Australia) Pty Ltd (1958)
100 C.L.R. 597. The decision (see p. 47, note 40) did not give a clear indication
of what the attitude of Australian courts should be if a United Kingdom statute were
now unambiguously to purport to change the law of Australia without reciting the
necessary request and consent of the Commonwealth of Australia, cf. Hanks in (1968)
42 A.L.J. 286. In a limited range of situations Parliament may legislate for the
Australian states without the concurrence of the Commonwealth Government. See
pp. 648-9.
R [1964] A.C. 900 at 918 (on the irrevocable ‘surrender’ of Parlia-
59. Ibralebbe v. .

ment’s power by the Ceylon Independence Act 1947) and 924 (on the surrender of the
Crown’s prerogative legislative power).
60. Ndlwana v. Hofmeyr A.D. 229 at 237; Harris v. Donges [1952] 1 T.L.R.
[1937]
1245 at 1261, sub nom. Harris Minister of the Interior 1952 (2) S.A. 428.
v.
61. Ndlwana v. Hofmeyr, above. See, to like effect, Rand (1960) 38 Can. Bar Rev .

135 at 149; Blackburn v. Att.-Gen. [1971] 1 W.L.R. 1037 at 1040, per Lord Denning
M.R. (though his Lordship also cited, without disapproval, the dictum in the British
Coal Corporation case, note 57). '

Ultimate Authority in Constitutional Law 75

 countries altogether. For example, section 1 (2) of the Mauritius Inde-
pendence Act 1968 provides: ‘No Act of the Parliament of the United
Kingdom passed on or after the appointed day [i.e., independence day]
shall extend, or be deemed to extend, to Mauritius as part of its law; . .* .

Is Parliament competent simply to resume its legislative sovereignty over

Mauritius tomorrow?
From the point of view of the Mauritian courts, the answer is clearly
not. The words of the Independence Act are unambiguous. Moreover
the achievement of independence should in itself be understood as having
liberated the legal order of Mauritius from its hierarchical subordination
to that of the United Kingdom, so that the omnicompetence of the
United Kingdom Parliament ceased to prevail in the local legal system. 62
And, looking at the matter from a common-sense point of view, one must
suggest that English courts should adopt the same attitude. The United
Kingdom Government and Parliament have renounced their authority
over Mauritius, surrendering it to the competent authorities in Mauritius.
One must also recognize that common sense does not always prevail in
63
legal theory.

2-A written constitution

If the rule of judicial obedience to Acts of Parliament can be reformulated

so that Parliament can effectively deprive itself of part of its sovereignty
by surrendering it or transferring it to authorities outside the territorial
limits of the United Kingdom, why can it not be reformulated by accepting
that Parliament can do exactly the same thing within the territorial limits
of the United Kingdom? Suppose, for example, that a federal constitution
were enacted, retaining a United Kingdom Parliament but purporting to
restrict its legislative powers. For the courts dogmatically to insist that, so
long as the United Kingdom Parliament existed, there was a mysterious
rule, both fundamental and unalterable, precluding them from recognizing
the efficacy of a transfer of part of its absolute sovereignty to Welsh and

Scottish Parliaments, would be extremely odd, if the new federal consti-

tution restricting parliamentary competence was known to have general
public support as well as a parliamentary majority behind it. One’s guess
is that rather than make themselves ridiculous, the courts would fall into
lineand vary the ‘fundamental* rule. They could vary it ad hoc (by declar-
ing in a concrete case that an enactment of the reconstituted United

62. See Kenneth Robinson in Essays in Imperial Government (ed. Robinson and
A. F. Madden), p. 249. The case would be even clearer if Mauritius had become
a republic.
63. cf. pp. 73-4.

76 General Foundations
 Kingdom Parliament was inoperative) or by a general pronouncement (as
when the House of Lords, acting extra-judicially, announced the abandon-
ment of the self-imposed basic rule that it was bound by its own earlier
64
decisions). Law in the courts ought not to rest on assumptions that
blithely ignore fundamental changes in constitutional structure.
One can carry this argument still farther. At present Parliament, as we
have noted, is incapacitated from binding its own future action as to the
substantive content of legislation where this would leave a legislative
vacuum. But if Parliament adopted a written constitution under which
no legislature in the United Kingdom was competent to violate certain
rights and freedoms (for example, by enacting ex post facto penal legis-
lation), it would be sensible for the judges to uphold the constitution
against future legislative encroachments, provided at least there was a
prescribed procedure for constitutional amendment. In other words, the
fundamental rule of judicial obligation ought to be regarded as flexible,
not immutable; as being susceptible to reformulation in the light of drastic
innovations in legislative practice and corresponding changes m the
climate of informed opinion about the limits of legislative authority. 65

66
3-Effect of accession to the European Communities

As was pointed out in an earlier chapter, our constitutional law must now
take into account Community legislation made by organs not subordinate
64. [1966] 1 W.L.R. 1234 (Practice Statement). Rupert Cross, Precedent in English
Law (2nd edn), 206-7. takes the view that a similar Practice Statement modifying the
rule of absolute judicial obedience to Acts of Parliament would be strictly ultra vires ,
though if it were acquiesced in and acted upon it would effect a legal revolution.
See also H. W. R. Wade, ‘The basis of legal sovereignty’ [1955] Camb . L.J. 172 (an
important and influential article), arguing that this basic rule or ultimate legal prin-
ciple is alterable by judicial decision but not by statute. 1 have difficulty in understand-
ing why a purported statutory modification of the present customary common-law
rule should be treated either as nugatory or as less ‘binding’ than other statutory
enactments merely because the present rule (i) is extremely important and (ii) was
established neither by statute nor by judicial decision but by judicial accommodation
to political facts. Nevertheless, the argument in the text above is confined to expressions
of opinion as to what the judges ought to do or are likely to do if a fundamental
structural change in the British constitutional system were to be adopted, and as to the
present territorial scope of the rule of judicial obedience to statutes.
65. The duty of the courts would probably be indicated expressly or by necessary
implication by the text of such a constitution. The constitution itself might be adopted
by a Constituent Assembly set up by parliamentary authority, and then be submitted
for the approval of the electorate at a referendum.
66. For a useful outline of Community law, see P.S.R.F. Mathijsen, A Guide to
European Community Law 2nd edn, 1975. See also Bebr (1971) 34 Mod L. Rev, 481.
,
.

On the issues relating to Britain’s accession, esp. Trindade (1972) 35 Mod L Ref. .

375 and references there cited; Mitchell, Kuypers and Gall (1972) 9 Common Market
L. Rev . 134. See also Appendix to this book.

Ultimate Authority in Constitutional Law 77

to Parliament. In particular, the Council of Ministers and the Com-
mission are empowered by the treaties to make regulations having direct
effect in member and creating individual rights and duties enforce-
States
able in national courts. The concept of ‘directly applicable’ Community
rules is recognized and implemented by section 2 (1) of the European Com-
munities Act 1972. Certain provisions of the treaties themselves are
‘directly applicable’ in the sense described. 67 Directives and decisions
issued by the Council or the Commission normally require further imple-
mentation by the Governments or other parties to whom they are ad-
dressed, but exceptionally they too may be directly applicable in national
68
courts.
Questions of the highest constitutional importance have now arisen.
At this stage we can only guess how they will be resolved. What if a
directly applicable rule of Community law (say, a regulation) conflicts
with an Act of Parliament? According to section 2 (4), ‘any enactment
passed or to be passed [subject to certain exceptions] shall have effect sub-
ject to’ the provisions of section 2 (1). Surely this is not a mere rule of
construction, to be displaced if the Act and the regulation cannot be har-
monized? It states that Acts of Parliament shall have effect subject to
directly applicable rules of Community law. We can assume that legis-
lation already in existence on 1 January 1973 or (after that date) when the
Community regulation is made will be impliedly repealed by the latter to
the extent that the two sets of rules are irreconcilably in conflict. But what
of post-accession United Kingdom legislation that is plainly inconsistent
with a prior Community regulation ? One can assume that our courts will
do their utmost so to construe legislation as to avoid such a collision.
However, according to prevailing British doctrine, primacy should be
accorded in the last resort to the subsequent United Kingdom statute,
unless perhaps this doctrine has been undermined by the combined effect
of the wording of section 2 (4) and the political fact of Britain’s accession
to the Communities. Now, according to well-settled Community doctrine,
Community law (and not merely ‘directly applicable’ Community law)

67. For example, art. 16 of the EEC Treaty: see Re Export Tax on Art Treasures
(No. C.M.L. Rep. 1 ; ibid. (No. 2) [1972] C.M.L. Rep. 699. See also pp, 42-3.
1) [1969]
The first case in which the English courts had to apply the EEC Treaty was Schorsch
Meier G.m.b.H. v. Hennin [1975] Q.B. 416 (held, any rule at common law which
required the English courts to give judgment only in sterling was incompatible with
art. 106 of that Treaty). See also Bulmer ( H.P. ) v. J. Bollinger S.A. [1974] Ch. 401
(‘Parliament has decreed that the treaty is henceforward to be part of our law. It is

equal in force to any statute’: per Lord Denning M.R. at 418), and Application des
Gaz S.A. v. Falks Veritas Ltd [1974] Ch. 381.
68. Grad v. Finanzamt Traunstein [1971] C.M.L. Rep. *41; S.A.C.E. y. Italian
Ministry of Finance [1971] C.M.L.Rep. 123.

78 General Foundations
 ought to prevail over all inconsistent national law, antecedent and sub-
sequent. As the European Court of Justice (the Court of the Communities)
has said, ‘the member have restricted
States, albeit within limited sphere-,
their sovereign rights,’ 69
and ‘no appeal to provisions of internal law of
any kind whatever can prevail’ over this cession of authority. 70 By section
3 (1) of the European Communities Act 1972, questions of Community
law ‘shall be determined’ by our courts ‘in accordance with the principles
laid down by and any relevant decision of the European Court’,
The European Court gives primacy to Community law even where there
is no direct conflict with national law. If Community rules have been

promulgated to ‘occupy the field’ in a matter within Community com-

petence, national Parliaments cannot pass any law on such a matter,
except possibly for the ancillary purpose of implementing those rules
locally on points of detail. 71 It seems, moreover, that if a competent
Community organ has made a treaty on a matter within its competence,
member States cannot legislate (or even enter into executive agreements
with non-member States) so as to detract from the operation of the Com-
munity policy, at least if that policy has been embodied in Community
72
rules.
If these pronouncements are to be taken at their face value, parlia-
mentary sovereignty is dead. However, things are not always as they seem
in the Communities. For instance, in 1977 West German courts had yet to
accept the Court’s ruling that Community law prevails over inconsistent
provisions of national constitutions. 73 Italy was dragging its feet in imple-
menting Community policies. 74 French courts were reluctant to refer
questions of Community law to the European Court. And most of the
pronouncements by the Court on the primacy of Community law were
made on preliminary rulings under Article 177 of the EEC Treaty, under
which the Court does not interpret national law but merely delivers a
general interpretation of Community law in a case referred by a national
court. If the national court can then apply the Community doctrine as

69. Costa v. ENEL [1964] C.M.L. Rep. 425 at 455.

70. Re Export Tax on Art C.M.L. Rep. 699 at 708.
Treasures (No. 2) [1972]
71. See, for example, the Hauptzollamt Hamburgcase [1970] C.M.L. Rep. 141 at
153; the Norddeutsches Vieh case [1971] C.M.L.Rep. 281 at 293; Re Imported Thai
Sand Flour ibid. 521.
y

12. Re European Road Transport Agreement [1971] C.M.L.Rep. 335 (dicta) -a

difficult case.
73. See the Internationale Handelsgesellschaft case [1972] C.M.L. Rep. 258, 330;
and further [1974] 2 C.M.L. Rep. 540.
74. A point well illustrated by the Export Tax cases (above). Again, value added tax
was introduced in the Communities in 1971, but Italy did not adopt it till two years
later.

Ultimate Authority in Constitutional Law 79

declared by the European Court to the case before it, it should do so. If it
cannot (for example, because of national constitutional doctrine) the
expectation is that the national authorities will pass amending legislation
(or adopt a constitutional amendment) as soon as possible. If this action
is not taken, the national authorities can be brought before the Court by
75
the Commission as defaulters (Articles 169-71) "But the most that the
Court can do (for special powers of the Commission, see p. 663) is to
make an unenforceable declaratory judgment against the Government in
question. It cannot hold national legislation to be void for inconsistency
with Community law. The Court is not at all like the Supreme Court of
the United States.
Given that the Communities are not and do not purport to be a true
federation, that national independence and ‘sovereignty’ are preserved
in form, that the effective policy-making organ is not the supranational
Commission but the Council of Ministers, which will not override the
76
vital interests of a member State, that the Communities are as yet
primarily concerned with economic and social rather than political matters,
and, that the United Kingdom’s membership may, for all one knows, not be
permanent, 77 it is quite possible that British courts will, for the time beings
still give primacy to subsequent United Kingdom legislation in direct
conflictwith Community law, notwithstanding the wording of the Euro-
pean Communities Act. Government spokesmen in Parliament were cer-
tainly mindful of this possibility, indeed probability. As good Europeans
they were carrying out Community obligations, but they were aware that
United Kingdom judges were quite likely not to accept that the doctrine
78
of parliamentary sovereignty had been demolished by statute. And so

was the procedure adopted in the second Export Tax case, after the Italian
75. This
Government and Parliament had failed to give effect to the Court’s ruling under art.
177 implying that this long-standing tax was incompatible with the EEC Treaty.
76. The ‘right of veto* is not embodied in the treaties but is implicit in the informal
Luxemburg Agreement of 1966, made to meet President de Gaulle’s objection to
decisions reached in accordance with the treaties by majority vote.
77. The EEC Treaty is expressed to be permanent. The Labour Government ‘re-
negotiated* the terms on which the United Kingdom had joined the EEC, and subse-
quently recommended (Cmnd 6003 (1975)) that the electorate should vote in a referen-
dum, held under the Referendum Act 1975, to stay in. This unprecedented cpnstitutional
device resulted in a two-to-one majority in favour of continued membership. Nobody
doubted that, had the result gone the other way, Parliament could effectively have
taken the United Kingdom out of the Communities. On the referendum, see David
Butler and Uwe Kitzinger, The 1975 Referendum (1976); Philip Goodhart, Full-Hearted
Consent (1976).
78. cf. Professor H. W. R. Wade’s article (note 64). See also Sir Geoffrey Howe, the
then Solicitor-General, 838 H.C. Deb. 1311-22 (13 June 1972), for a careful analysis
of section 2 (4) in this context.
A possible intermediate position is that the doctrine of parliamentary sovereignty

80 General Foundations
this unique Act a fascinating exercise in equivocation, a wilful mani-
is

festation of legislative schizophrenia. Or, to vary the metaphor, the

United Kingdom Government has seated Parliament on two horses, one
straining towards the preservation of parliamentary sovereignty, the other
galloping in the general direction of Community law supremacy.

What is an Act of Parliament?

Let us now disregard the major issues just considered. How far, if at all,
do the courts at the present time have jurisdiction to determine whether
what purports to be an Act of Parliament is, as a matter of law, an authen-
tic statute which they are bound to apply?

The rule that judges ought to apply Acts of Parliament can be classified
as a common-law rule, albeit a rule of outstanding importance. The mean-
ing of the Queen in Parliament, and of an Act of Parliament, are governed
partly by customary common law and partly by statute. The jurisdiction
of the courts to examine the authenticity of purported Acts of Parliament
can be considered by using inferences (in which considerations of public
policy are of some consequence) drawn from common-law and statutory
rules.

1. At common law. Parliament as a legislative body consists of the House

of Commons, the House of Lords and the Queen. Each House must
record its assent to a bill separately and the Queen has at least a formal
discretion whether to assent to bills passed by them. The methods of
giving and communicating the royal assent are regulated or prescribed by
statute.
79
When Parliament is dissolved, its sovereignty is temporarily in
abeyance since it is unable to legislate; there is a House of Commons, but
it has no members because their seats have become vacant; there is a

House of Lords, but it is incapacitated from sitting (except as a court of

law) during a dissolution.
2. The customary common-law rule that each House has to pass a bill
before it can be presented for the royal assent has been modified by

has been changed but would revive if Parliament took the ‘revolutionary* step of
excluding the United Kingdom from the Communities.
79. Royal Assent Act 1967. An Act of Parliament is now duly enacted if the royal
assent is signified (i) by Letters Patent signed by Her Majesty under the Great Seal and
pronounced in the customary manner (i.e. by Royal Commissioners in the House of
Lords, the Commons also being present), or (ii) as above but announced to each
House separately by the Speaker of that House (so as to avoid interruptions of the
proceedings of the Commons because of the arrival of Commissioners in the Lords), or
(iii) by Her Majesty in person,m the presence of both Houses. For forms of the assent,
see Crown Ofiice Rules Order 1967 (S.I. 1967, No. 802).

Ultimate Authority in Constitutional Law 81

statute. The Parliament Acts 1911 and 1949 authorize the presentation of
a bill for the royal assent if certain conditions have been complied with,
although the House of Lords has not passed the bill.

3. In order .to express its sovereign will, Parliament must be constituted

as Parliament and must function as Parliament within the meaning of
existing common law and statute law. Unless these antecedent conditions
for law-making have been fulfilled, the product should not be regarded as
an authentic Act of Parliament. 80
4. Nevertheless, if ah official copy of what purports to Jbe an Act of Parlia-
ment, bearing the appropriate customary words of enactment (normally81
‘Be it enacted by the Queen’s most excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the same,
as follows’) produced, the courts will almost certainly accept this as
is

conclusive evidence that the measure is authentic and has been duly passed.
This follows from the decision of the House of Lords in British Railways
Board v. Picking1 In 1969 Mr Pickin had purchased part of a disused rail-
way line and land adjoining it. But the Board subsequently claimed that it
was the owner by virtue of a private statute, the British Railways Act 1968,
section 18(1). Mr Pickin, however, alleged that in obtaining the passage of
that Act in its favour, the Board had fraudulently concealed certain
matters from Parliament and that section 1 8 was therefore ineffective and
did not deprive him of his proprietary rights. 83 Such an allegation, to be
tested, would require the courts to look to see what had happened in

80. This proposition is stated dogmatically and cannot be demonstrated to be

correct, but isfounded on logic. It enjoys widespread support among modern writers
(for example, R. T. E. Latham, The Law and the Commonwealth , pp. 523-4, Sir Ivor
Jennings, The Law and the Constitution (5th edn), ch. 4, J.D.B. Mitchell, Constitu-
tional Law (2nd edn) ch. 4, R. F. V. Heuston, Geoffrey Marshall, Hamish Gray, D. V.
Cowen, B. Beinart, note 106 below). Keir and Lawson, Cases in Constitutional Law
(5th edn), pp. 7-9, adopt a non-committal position. Hood Phillips, Constitutional and
Administrative Law (5th edn), p. 66, accepts the general logical proposition but is
reluctant to draw inferences from it as to the permissible scope of judicial inquiry.
81. Extra words are added for money bills. The usual enacting formula was evolved
in the fifteenth century. By virtue of the Statute Law Revision Act 1948, s* 3(1) (a), it
can be omitted altogether of the Statutes of the Realm. Semhle
in a revised edition
omission of a recital that the House of Commons or
(unless otherwise provided by
statute) the House of Lords had consented to an Act. would render the measure
nugatory: The Prince's Case (1606) 8 Co. Rep. la at 20a. The words of enactment
have been varied by statute for measures passed under the Parliament Acts without
the consent of the House of Lords: Parliament Act 1911, s. 4(1).
82. (1974] A.C. 765.
83. On the special procedure required for the passage of a private Act, see below
p. 27L. ..

82 General Foundations
 Parliament during proceedings on the The House of Lords unanim-
bill.

ously decided that the courts had no jurisdiction to do so, either in relation
to a private or any other Act of Parliament. 84 As Lord Reid put it: 85
For a century or more both Parliament and the courts have been careful not to act so
as to cause conflict between them. Any such investigations as the respondent seeks
could easily lead to such a conflict . . . The whole trend of authority for over a century
isclearly against permitting any such investigation.

This decision clarifies the situation which had been the subject of much
academic debate. The courts will apparently now take the view that they
lack jurisdiction to pronounce an ostensibly authentic Act of Parliament to
be a nullity even though in fact Parliament has not functioned according to
existing law. But the point still requires further exploration.

The enrolled bill rule

Before Pickings case much had been made of the words of Lord Campbell
in Edinburgh and Dalkeith Railway Co v. Wauchope: 86 .

All that a Court of Justice can do is to look to the Parliament Roll : if from that
it should appear that a bill has passed both Houses and received the Royal
Assent, no Court of Justice can inquire into the mode in which it was introduced
into Parliament, nor into what was done previous to its introduction, or what
passed in Parliament during its progress in its various stages through Parliament,

Several comments can be made on this much-quoted passage.

1 . The statement was a mere obiter dictum , a point missed by many com-
mentators.
2. A peculiar sacrosanctity used to be attributed to the Parliament roll,
the formal record of the High Court of Parliament, 87 upon which the
originals of all Acts were engrossed in manuscript. Practice changed over
the years. 88 From 1497 the original text was retained in the House of
Lords and a copy made on a Parliament roll, was sent to the Chancery.
,

Since the middle of the nineteenth century, two copies of a bill as assented
to have been printed on vellum, and the Clerk of the Parliaments then
adds his signature for the purpose of authentication; the ‘original’ is

84. Thus applying the dicta of, among others, Lord Campbell in Edinburgh and Dal-
keith Railway Co. v. Wauchope (1842) 8 Cl. & F. 710 at 725 and of Wilkes J. in Lee v.
JBude and Torrington Railway Co. (1871) L.R. 6 C.P. 576 at 582.
85. Pickin' s case at 788.
86. See note 84.
87. See Jennings, The Law and the Constitution (5th edn), p. 139 and Appendix 3.
But R. F. V. Heuston, Essays in Constitutional Law (2nd edn), pp. 1 6-20.
cf.

88. For a historical survey, see M. F. Bond, ‘Acts of Parliament* (1958) 3 Archives
201 .

Ultimate Authority in Constitutional Law 83

kept in the House of Lords, and the duplicate ‘Parliament rolP copy now
goes to the Public Record Office. 89 There was no reason of basic principle
why these two official texts should have precluded all further judicial in-
quiry whatsoever into the procedure followed prior to enactment.

3.Copies of the Act are also printed by the Queen’s Printer at Her Majesty’s
Stationery Office and sold to the public. Under section 9 of the Inter-
pretation Act 18S9, judicial notice must be taken of all public Acts of
Parliament passed since 1850; this states a rule of evidence90 and does not
specify what is an authentic Act of Parliament.

4. The courts will not encroach upon the exclusive preserves of the two
Houses. Article 9 of the Bill of Rights 1689, provides that ‘proceedings
in Parliament ought not to be impeached or questioned in any court or
place out of Parliament’. They fall within the province of parliamentary
privilege. Hence the courts will refuse to inquire into such questions as
whether either House was mistaken as to the facts, whether a bill had
two, three or thirty-three readings, whether a quorum was present, and so
on. Perhaps they would even disclaim jurisdiction to inquire whether a
91
bill was in fact passed in the same form by both Houses. If, however, it

were to be asserted that a bill had not obtained a majority at the final
reading in the House of Commons, would they, even after Pickin ' s case, be
prepared to go behind the official text of the Act and examine the Journal
of the House and the notes of the official shorthand writers, on the grounds
that the alleged defect was peculiarly gross and that ‘a court must not
decline to open its eyes to the truth’ ? 92 Even if they were so prepared it is

89. Erskine May, op. cit., p. 569. We

are indebted to the Clerk of the Parliaments and
the Clerk of the Records in the House oi Lords for verification of the information set
out above. It must be obvious that the modern ‘Parliament roll’ copy of a statute need
not enjoy the unique status of an original engrossed on the ancient Parliament roll,
irrespective of judicial dicta suggesting that it does.
90. For the various rules of evidence relating to proof of Acts of Parliament, see
Halsbury's Laws oj England (3rd edn), vol. 15, pp. 365-7.
91. Doubts on this point are expressed by Maitland, Constitutional History of
England pp. 381-2. See also Craies on Statute Law (7th edn), pp. 37-40; the point is
,

unsettled. Examples of such errors, and other irregularities in the enactment of bills,
being followed by validating or amending legislation, are given by Erskine May,
op. cit., pp. 570-71. The question whether the discrepancy between a bill as passed by the
Commons and the bill as passed by the Lords rendered the Act invalid was actually
argued before a court in PyIking ton's case (1455; discussed by Cowen in 16 Mod.
L, Rev. at 275-7) but no final decision was recorded.
92. cf. Bribery Commissioner v. Ranasinghe [1965] A.C. 172 at 194 (dealing with the
jurisdiction of the courts, at least in Ceylon, to inquire whether a prescribed Speaker’s
certificate had been given in the due form on a bill before enactment). The comment
in the text above is necessarily speculative. See further Beinart, loc. cit., for a very
full review of these questions.

84 General Foundations
 doubtful whether a court would be prepared to conduct such an inspection
without leave of the House, because the House has asserted the privilege
93
not to have its internal proceedings investigated.
5. What it is alleged that procedural or formal requirements laid down
if

by have not been complied with during the passage of a bill? Some
statute
modern statutes 94 have laid down procedural rules to be observed before
a particular class of bill is introduced in Parliament. These rules are
probably no more than directory; that is to say, non-compliance will not
vitiate the end-product. One can arrive at this conclusion by two alternative
assertions. The first is that the giving of the royal assent and publication
with the appropriate words of enactment cure all prior defects. The second
is that the rules in question are not of such fundamental importance to be

regarded as conditions precedent to the validity of subsequent legislation. 95

Clearly these are different approaches, the second implying that com-
pliance with statutory procedural rules of fundamental importance might
be regarded as a condition precedent. One is not obliged to assume that
fundamental rules of such a character lie within the exclusive cognizance
of Parliament itself.
6. It is unlikely that a court would be prepared to issue an injunction to
restrain the submission of a bill for the royal assent or otherwise intervene
while a bill was before Parliament. 96 The Attorney-General could probably
obtain an injunction to prevent a public body from exceeding its statutory
powers by promoting a private bill before the matter came before Parlia-
ment. 97

93. Erskine May, op. cit., pp. 84-6. See also pp. 307-8, 309-10.
94. For example. Consolidation ol Enactments (Procedure) Act 1949.
95. cl*. Clayton v. llcfjron (1961) 105 C.L.R. 214, wlicrc part of the procedure
prescribed lor the resolution ol a disagreement between the two Houses of Parliament
in Victoria had not been observed in the passage ol a bill ; held, the requirements were
only directory. Contrast Bribery Commissioner v. Ranasinghe [1965] A.C. at 200 (held
that the giving of a Speaker’s certificate was a necessary part of the legislative process,
and omission was not cured by royal assent to a bill).
its

96. mam reason being that this would be a breach of parliamentary privilege -
The
an objection that would not apply to proceedings before a colonial legislature:
Redijfusion ( Bong Kong) Ltd v. Att.-Gen. oj Hong Kong [1970] A.C. 1136. Injunctions
have been awarded in Australia, but are unlikely to be granted m future. See Sawer
(1944) 60L.Q.R. 83; Cowen (1955) 71 L.Q.R. 336; D. G. Benjafield and H. Whit-
more, Principles oj Australian Administrative Law (4th edn), pp. 228-31 ; R. D. Lumb,
Constitutions oj the Australian States (3rd edn), ch. 5; J. I. Fajgenbaum and P. J.
Hanks, Australian Constitutional Law (1972), ch. 12; Enid Campbell, Parliamentary
Privilege in Australia , pp. 85-9.
97. Att.-Gen v. London and Home Counties Joint Electricity Authority [1929] 1 Ch.
.

513 (unlawful expenditure of funds for the purpose). But the jurisdiction to award an
injunction will be sparingly exercised and is unlikely to be exercised at all in proceedings

Ultimate Authority in Constitutional Law 85

7. One can nevertheless imagine situations in which a measure purporting
to be an Act of Parliament might be treated as nugatory by a court. For
example, the Parliament Acts enable certain bills to be presented for the
royal assent without the consent of the Lords, and provide that a certificate
given by the Speaker of the Commons before a bill is presented for assent,
and endorsed on the bill that the requirements of the Acts have been com-
plied with, shall be conclusive for purposes and shall not be questioned
all

in any court. 98 But bills to prolong the duration of a Parliament beyond

99
five years are explicitly excluded from the Parliament Act procedure. If
such a bill were to be passed by the Commons alone, certified by the
Speaker and assented to by the Queen with words of enactment stating
100
that it had been passed
accordance with the Parliament Acts,
in a court
should surely treat that ‘Act’ as a nullity, because it was ‘bad on its face’;
the body purporting to enact it would not be ‘Parliament’ within the
meaning of existing law. The fatal defect 101 would be apparent without any
judicial intrusion into the proceedings of either House; the purported Act
would be no more efficacious than a resolution of the House of Com-
mons. 102 A broadly similar analysis might be applicable to a situation in
which a Regent assented to a bill to alter the succession to the throne or
the establishment of the Church in Scotland, in disregard of the prohi-
103
bitions contained in the Regency Act 1937. These are no doubt some-
what fanciful hypotheses, but by putting extreme examples, the limitations
of an apparently rigid rule can be exposed.

between parties. See Bilston Corpn v. Wolverhampton Corpn [1942] Ch. 391 (no
injunction to restrain breach of undertaking, confirmed by statute, not to oppose
introduction of bill);Holdsworth (1943) 59 L.Q.R. 2. cf. p. 381.
98. Parliament Act 1911, ss. 2(2), 3; Parliament Act 1949. For the Speaker’s certi-
ficate that a bill is a money bill within the meaning of the 1911 Act, see s. 1(3) of that

Act.
99. 1911 Act, s. 2(1).
As we have already indicated (see p. 48), an erroneous certificate that a bill was
100.
a money bill would be probably accepted as conclusive unless the error was so gross as
to be indicative of bad faith. This is because the practical consequences of holding
a money bill to be a nullity might be extremely grave.
101. Or to use the colourful phrase used in R . v. Arundel ( Countess ) (1617) Hobart
109 at 111, the ‘death wound*.
102. Which has no legal effect outside the walls of Parliament ( Stockdale v. Hansard
(1839) 9 Ad. &
E. 1 ; Bowles v. Bank of England [1913] 1 Ch. 57), unless given such an
effect by Act of Parliament: see Provisional Collection of Taxes Act 1968; and ch. 14.
103. Regency Act 1937, s. 4(2). This provision might, of course, be held to be merely
directory, though such an analysis seems implausible.

86 General Foundations
 Redefinition of the meaning ofParliament

Parliament is capable of redefining itself for particular purposes. It did

so by the Parliament Acts, which provided a simpler, optional procedure
for legislation on most topics. 104 It could make the procedure simpler still
by abolishing the House of Lords. What if iCwere to lay down a more
cumbersome procedure for legislating and prescribe it as the only pro-
cedure to be followed? Suppose, for example, that Parliament were to
pass an Act stating that changes in parliamentary constituencies made by
independent boundary commissions were to have direct legal force, that
no bill to vary these changes was to be presented for the royal assent unless
it had first obtained the support of a majority of the voters at a referendum,

or had been passed at its final reading with the support of two-thirds of
the full membership of the House of Commons; and that no bill to amend
or repeal that Act was to be presented for the royal assent unless that same
procedure had been followed. 105 Could Parliament nevertheless amend or
106
repeal the Act by ordinary legislative procedure?

1. It is not enough to incant the phrase: ‘A sovereign Parliament cannot

bind its own future action.’ 107 One of the questions to be asked is: ‘What

104. Professor H. W. R. Wade ([1955] Camb. L.J. 172) regards measures passed
under procedure as a special form of delegated legislation. We respectfully prefer
this
Dr Geoffrey Marshall’s view ( Parliamentary Sovereignty and the Commonwealth pp. ,

42-6) that such legislation is primary and not delegated. Professor Hood Phillips
(iConstitutional and Administuitive Law (5th edn), pp. 73-4) goes so far as to characterize

legislation passed with a Regent’s assent ‘as a kind of delegated legislation’, and on this
ground would justify a judicial decision to the effect that an ‘Act’ assented to by a
Regent in contravention of s. 4(2) of the 1937 Act was invalid. He has also suggested
{Reform oj the Constitution , pp. 18-19, 91-2) that the Parliament Act 1949 is a nullity
because the ‘delegate’ created in 1911 enlarged its own limited powers in passing it.
105. Unless this last entrenching provision was present - it is absent from section 1
of the Northern Ireland Constitution Act 1973, as it was from section 1(2) of the
Ireland Act 1949 - it could easily be argued that the Act imposing the special require-
ment could itself be amended or repealed by ordinary legislative procedure.
106. Among the main recent contributions are those by Cowcn (1952) 15 Mod.
L. Rev. 282, (1953) 16 Mod. L. Rev. 273; Beinart [1954] Butterworth's South African
Law Rev. 135; Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth
and Constitutional Theory ch. 3 ; R. F. V. Heuston, Essays in Constitutional Law
,

(2nd edn.), ch. 1 H. W. R. Wade [1955] Camb.L.J. 172; Sir Ivor Jennings, The Law and
;

the Constitution (5th edn), ch. 4; J. D. B. Mitchell, Constitutional Law (2nd edn), ch. 4;
Gray (1953) 10 U of Toronto L.J. 54; W. Friedmann (1950) 24 Australian L.J. 103;
.

O. Hood Phillips, Constitutional and Administrative Law (5th edn), pp. 54-66; Harry
Calvert, Constitutional Law in Northern lreland> ch. 1.
107. In this context the implications of Att.-Gcn. for N.S.W. v. Trethowan (1931)
44 C.L.R. 394; [1932] A.C. 526 arc often misunderstood by students. Under tho
constitution of New South Wales as amended by local legislation passed in 1929, a
bill to abolish the upper House could not be presented for the royal assent unless it had

Ultimate Authority in Constitutional Law 87

 is meant by “Parliament”?’ Another - essentially the same question
expressed in a diflerent way — is whether there cannot be new mandatory
legal rules as to the manner and form of law-making which Parliament
must observe if its enactments are to be recognized as authentic. The
much-quoted dictum that ‘Parliament cannot bind itself as to the form of
subsequent legislation’ 108 carries us nowhere, for it was uttered merely to
rebut the optimistic argument that Parliament had protected an ordinary
enactment against implied repeal. 109 Another question, as we have already
seen, is the extent to which the courts have jurisdiction to determine
whether ‘Parliament* has acted in conformity with the law behind Par-
liament.

2. Modern decisions in constitutional cases arising in South Africa 110 and

firstbeen approved by the electorate at a referendum, and a like requirement extended

to any bill to amend or repeal this procedure. Following a change of government in

1931, bills were passed by both Houses of the New South Wales Parliament to remove
the referendum rule and to abolish the upper House; neither bill was submitted to a
referendum. Injunctions were obtained to restrain submission of the bills for the royal
assent. This may have been an inappropriate remedy (see Hughes and Vale Pty Ltd v.
Cair (1954) 90 C.L.R. 203 at 204-5), but the decision on the point of substantive law
was clearly correct. Confusion has been caused by the fact that New South Wales
had a non-sovereign legislature; and section 5 of the Colonial Laws Validity Act 1865,
which applied to New South Wales, provided that a ‘colonial* legislature could make
laws relating to its constitution, powers and procedure ‘in such manner and form as
may ... be required ’ by existing law. The applicability of section 5 furnished one reason
for holding the improper procedure to be unlawful the decision should have been the
;

same, however, even if New South Wales had had a ‘sovereign’ legislature: see cases
cited in notes 110 and 111 below. There is a common but wholly unfounded miscon-
ception that because New South Wales had a non-sovereign legislature and was held
to be competent to ‘bind its own future action*, it therefore follows that a sovereign
legislature like the United Kingdom Parliament is incompetent to do so.
108. Note 56.
109. cf. R
v. Drybones [1970] S.C.R. 282 (Can.) for the position of an extraordinary
.

enactment (the Canadian Bill of Rights 1960) which the majority of the Supreme Court
held would prevail over inconsistent legislation not expressed to be made ‘notwith-
standing’ the Bill of Rights. See also Auburn (1972) 35 Mod. L. Rev . 129; E. Likhovski,
Israel's Parliament: The Law of the Knesset.
110. Harris v. Donges [1952] 1 T.L.R. 1245, sub nom. Harris v. Minister of the
Interior 1952 (2) S.A. 428 (two-thirds’ majority of both Houses of the South African
Parliament required by the South Africa Act 1909 for removal of Cape coloured
voters from the common voters’ roll; held, a measure passed by both Houses sitting
separately by simple majorities was not an authentic Act of Parliament, although it
had been assented to); see also Minister of the Interior v. Harris 1952 (4) S.A. 769 (an
‘Act* constituting the two Houses as the ‘High Court of Parliament* with power to
override the previous decision by a simple majority, also held to be a nullity). See,
however, Collins v. Minister of the Interior 1957 (1) S.A. 552, where the desired result
was achieved by a sufficiently circuitous route. For the literature on this series of legal
battles, see Marshall, Parliamentary Sovereignty and the Commonwealth .

88 General Foundations
Ceylon 111 show that a sovereign (i.e. omnicompetent) Parliament must
function in the manner prescribed by existing law in order validly to
express its legislative will. In each of the cases the constitution had laid
down a special procedure (a two-thirds’ majority of the two Houses in
joint session, or a two-thirds’ majority in the lower House, at final read-
ing) to be followed for the enactment of legislation on certain important
matters. In each of them the courts held that where bills dealing with these
‘entrenched’ matters had been passed by ordinary legislative majorities
and had been duly assented to and printed, they could not be accepted as
authentic Acts of Parliament. There was to be read into the constitution a
necessary implication that ‘Parliament’ bore different meanings for
different purposes.

3. These decisions, extremely interesting though they are as illustrations

of basic principle, are of doubtful persuasive authority when we try to

answer our hypothetical problem set in a British constitutional context.
In the first place, in each of them the wording of a Speaker’s certificate on
the face of the Act or bill in question (or the absence of such a certificate)
indicated that the specially prescribed procedure had not in fact been
followed. Although the decisions suggest that the courts can look at the
original of the bill as presented for assent (and are not confined to the bare
text of the published Act), they do not offer clear guidance on the proper
limits of a court’sscope of inquiry if there is no requirement uf a SpeJLi/’s
certificate, or if a Speaker’s certificate or the words of enactment are
notoriously false or are alleged to be false. As far as British courts are
concerned, these questions remain open. In the second place, none of
them deals with the legal effects of self-imposed procedural requirements
by the Parliaments of those countries; the requirements had been imposed
by the constitutional instruments from which the Parliaments derived
their authority to make law.

4. None the less, there is no logical reason why the United Kingdom Parlia-
ment should be incompetent so to redefine itself (or redefine the procedure
for enacting legislation on any given matter) as to preclude Parliament
as ordinarily constituted from passing a law on a matter. (There are, of
course, doubts as to the jurisdiction or willingness of the courts to inter-
vene.) If Parliament can make it easier to legislate, as by passing the
Parliament Acts or abolishing the House of Lords, it can also make it
harder to legislate.

111. Bribery Commissioner v. Ranasinghe [1965] A.C. 172 (royal assent did not cure
failure to obtain a two-thirds’ majority in the lower House for a measure inconsistent
with the constitution). See further R (O’ Brien) v. Military Governor , N.D. U. Internment
.

Camp [1924] I.R. 32 (failure to submit a bill to a referendum held fatal to the validity
of an ostensibly authentic Act; see Heuston, op. cit., pp. 11-14).

Ultimate Authority in Constitutional Law 89

5. Hence a two-thirds’ majority rule might be analysed either as a re-
definition of the meaning of ‘Parliament’ or a prescription of essential
procedural conditions before Parliament could speak with an authentic
voice; a rule imposing a duty to hold a referendum could quite persuasively
be analysed as the addition of a fourth element to ‘Parliament’, in much
the same way as the Parliament Act procedure can be analysed as involving
the conditional subtraction of one of the three elements from Parliament.

6. Such an analysis can be attacked on the ground that once it is con-

ceded that Parliament can make legislation on any topic more difficult,
one must then concede that it can make legislation impossible. If it can
lay down a two-thirds’ majority rule it can lay down a nine-tenths’ majority
rule, and a similar rule for the majority to be obtained at a referendum.
In this way it could, by imposing requirements as to the manner of legis-
lating, in practice bind itself not to change the substantive content of
future legislation, and this would be contrary to both established principle
and public policy; a legislative vacuum must not be created; consequently
the courts ought not to recognize the legal efficacy of any such restrictive
rule. The only ways of answering this point are that there exist political
safeguards against the adoption of such restrictive rules, just as there are
political safeguards against the enactment of preposterous laws by
ordinary legislative procedure; and that a court could draw a common-
sense line between binding rules regulating the manner of legislating and
which if accepted as binding would, in substance, stop
ineffectual, rules
Parliament from legislating at all. 112 One must, however, recognize the
distinct possibility that a court might decide not to engage in such a
delicate exercise.

To
devote more space to this conundrum would hardly be worth while.
We To dwell there longer
are in the realm of speculative conjecture.
would be justified only if there were a substantial likelihood that our
hypothetical situation would assume practical importance.

Practical limitations on the legislative power of Parliament

Some of these limitations are considered more fully in chapters 7, 10 and

12. Wehave already considered the possible legal effect of entry to the
European Communities. Even if membership does not curb the formal
legal sovereignty of Parliament, the obligations entailed by membership
mean have to abstain from legislating, or
that in practice Parliament will
ways, on a number of important topics; and that
legislating in particular
legislation (mainly under delegated authority conferred by section 2
(2) of

112. See W. Friedmann (1950) 24 Australian LJ. at 105-6.

90 General Foundations
the
113
European Communities Act 1972 ) will have to be passed in con-
formity with Community requirements.
exercise of
When one asks what are the practical limitations on the
the effective re-
parliamentary supremacy, one is also asking what are
straints operating on the Government;
for the legislative programme is

largely dominated by the Government. In the first place, a Government’s

of action inhibited by its international position, and in par-
freedom is
undertaken. Quite apart
ticular by international obligations which it has
of Community law, a Government would
from the pervasive influence
inconsistent
need to have very strong reasons for introducing legislation
with its obligations under the European Convention on Human
Rights,

GATT, or other multilateral conventions to which this country had

Again, when the Government is obliged to seek a very large loan
acceded.
from external sources, it may be compelled to introduce restrictive fiscal
and economic measures by legislation as a condition of receiving the
money.
Secondly, the Government would not sponsor legislation which flag-
rantly violated a constitutional convention restricting the territorial ambit
or subject-matter of legislative competence. It would not initiate legislation
intended to encroach on the autonomy of an independent Commonwealth
country or, for example, to impose changes in the laws of the Channel
Islands on purely domestic matters. It has often been stated that the
Government must not ‘exceed its electoral mandate’ by introducing
major constitutional changes which have not been foreshadowed by its
election manifesto. One may accept that there exists a loose convention to
this effect, but one must recognize that unforeseen contingencies always
arise during the life of a Parliament, that the country cannot exist on a
diet of dissolutions, that a party’s election manifesto docs not have to be
comprehensive and that a vote cast at a General Election does not imply
conscious support for every aspect of a party’s programme. The concept
of the electoral mandate too often a thin veil for political cant.
is

Thirdly, the Government will not introduce legislation which it believes

to be incapable of enforcement. Occasionally an Act proves subsequently
to be unenforceable (for example, the Southern Rhodesia Act 1965,
asserting Parliament’s paramount authority over the breakaway colony),
but that is another matter. Nor will an Act be passed which requires the
cooperation of the general public but which flies in the face of strong
public opposition. It was one thing to pass legislation suspending capital

punishment for murder or abolishing corporal punishment for criminal

offences - legislation to which a majority of the electorate was opposed,

113. See ch. 15.

Ultimate Authority in Constitutional Law 91

but which could be implemented by judicial and administrative action or
inaction affecting a smallnumber of persons. It would be another thing to
make it an offence to manufacture or sell all alcoholic liquor.
Fourthly, although unpopular legislation may be passed, the Govern-
ment would not introduce and its normally obedient supporters in Parlia-
ment might refuse to support legislation which would court inevitable
of the life of a Parliament. Repeal of all
electoral disaster in the later stages
restrictions on Commonwealth immigration would fall into this category.
Fifthly, a Government’s freedom of legislative initiative is circum-
scribed to some extent in so far as it is customary or expedient (or both)
to consult in advance and pay some regard to the views of powerful
organized interest groups, which are also able to exert pressure through
their spokesmen in Parliament.
Sixthly, theGeneral Election of February 1974 resulted in the formation
of a minority Labour Government - the first Government to be formed
without a parliamentary majority since 1929. The October 1974 General
Election gave that Government a small overall majority; the fragmentation
of opposition representation reduced the prospects of defeat in the Com-
mons. 114 Thus, since 1974 the parliamentary situation has been such that
the Government has had to be abnormally careful to bring forward only
proposals which would carry - at the least - its parliamentary party. This
brake will not be released until another Election produces what has been
the rule rather than the exception in the United Kingdom - majority
government.
Two other points must be made. First, there are still those who will

solemnly affirm that Parliament ought not to legislate against the weight
of public opinion; and even that the purpose of constitutional conventions
is to ensure that government is conducted in accordance with public

opinion. Stated in these general terms, such propositions are unacceptable.

The British system of parliamentary government is above all a system of
government It is not a system geared to a series of opinion polls or referenda
.

in which the garbled voice of the people is equated with deity.

115
Among
the factors which the Government and members of Parliament have to
take into account is the strength of public sentiment on particular issues.
But this is one factor among many. Members of Parliament are repre-
sentatives but not delegates of their constituents; nor is the Cabinet a
committee of the House of Commons or of Parliament. A Government
and its parliamentary supporters ought to act in the way they think best in
the general interests of the country. It is open to the electorate to use

114. One minor and two major divisions were lost: see pp. 165, 149, note 12.

115. Though cf. p. 93.

92 General Foundations
criticism and ridicule, to exert pressure on their representatives by legit-
imate means, to voice their displeasure at by-elections and to turn the
Government out at the next General Election. But there is no consti-
tutional convention to the effect that a Government which loses the
confidence of the country must resign or advise a dissolution of Parliament,
so long as it commands a majority in the House of Commons.
The second point should be stated in order to balance this account,
though its connection with the idea of the supremacy or sovereignty of
Parliament is only marginal. Although Parliament, for political purposes,
is not to be thought of as a collective entity, and although in the last
resort a Government will normally be able to bring its supporters in the
House of Commons (and its supporters and opponents in the House of

Lords) reluctantly to heel, the last resort is seldom reached. Because

Parliament exists, because the Opposition in the House of Commons is
always probing for opportunities to discredit the Government, and because
Governments prefer convincing their backbenchers to bullying them, and
are anxious to avoid public recriminations within the party in front of the
Opposition, a Government needs to explain and justify its position to
Parliament, and through Parliament to the public at large, as persuasively
as possible and with an outward show of unity. Moreover, parliamentary
time is not unlimited; and draconian action to curtail debate when obstruc-
tive tactics areused in the House of Commons can prove counter-produc-
tive. These factors undoubtedly influence the content of legislation, as well
as curbing a Government’s general freedom of action. Prudence often
dictates caution and compromise.
Finally there is a temptation to overstate the virtues of the Westminster
system of responsible and representative government. Such a tendency was
apparent in 1971 and 1972, when there was a genuine case for submitting
the question of British entry to the EEC to a referendum of the electorate.
Referenda were held in the other three applicant states.
As we have seen, it was not until 5 June 1975 that a referendum was
finally held on this single, albeit complex, issue of extraordinary con-
116
stitutional importance. The United Kingdom had already joined the
EEC; the electorate voted to remain in membership.
116. Referendum Act 1975, and see further p. 60, note 77 and p. 168. Although at
the time of that poll the referendum was officially described as a device for use on that
occasion and no other, it is the Government’s present intention to submit its devolu-
tion proposals for judgment in referenda to be held in Scotland and Wales.

Ultimate Authority in Constitutional Law 93

 Part Two
The Executive

In this Part are collected the more important or interesting rules about
central government. As far as is practicable they have been set against
their political background. But this is not a textbook on politics or public
administration, and it does not purport to give a full account of how
Britain is governed.
Textbooks on constitutional law usually deal with Parliament first and
the Government afterwards. Here the order is reversed (apart from the
earlier treatment of parliamentary sovereignty), mainly because the
author regards the Government as being more important than
Parliament. But Government and Parliament (Executive and
Legislature) are closely interlocked, and some matters discussed in this
Part of the book will reappear in Part Three.
Chapter 4 covers a wide range of topics - the rules of law about the
monarchy; residual matters on which the Queen may still be entitled by
constitutional convention to act in her personal discretion; the scope of
the royal prerogative, a bundle of rights, privileges and immunities
belonging to the Crown and to the Crown alone; the law relating to the
activities of the executive branch of government and its officers in
foreign affairs. The common thread running through this chapter is the
Queen, or the Crown. In British constitutional law we do not recognize
‘the State’ as a legal concept.
Chapter 5 deals with the Privy Council, now only a ‘dignified’ organ of
government, and with its active committees, including the Judicial
Committee. In chapter 6 we consider the roles of the Prime Minister and
his Cabinet colleagues in the scheme of government, and we stray
beyond constitutional law into a controversial area of politics. We also
examine the various meanings of the doctrine of ministerial
responsibility. Chapter 7 goes on to outline the structure of central
government, including an account of bodies ancillary to Departments,
and some of the rules about the organization of the civil service and the
legal and constitutional position of its members. Here we have to record
a number of changes.
Chapter 8 deals with some aspects of the constitutional position of the
armed forces of the Crown and their members. In chapter 9 we consider
topics of more obvious contemporary importance - in particular, the
legaland constitutional status of the bodies operating nationalized
industries,and the machinery by which they are scrutinized or controlled.
These industries are not run by government Departments, but it is
convenient to discuss them alongside chapters dealing with the central
government. In this area, too, changes are taking place.

96 The Executive
 Chapter 4
The Crown and the
Royal Prerogative

Constitutional monarchy 1
The Queen today remains a symbol of national identity, a focal point of
national loyalty, transcending partisan rivalry and strengthening social
cohesion. The national anthem is ‘God Save the Queen’; British coins
and postage stamps bear her image; the Queen personifies the State and
the nation, their historyand continuity. The Government is Her Majesty’s
Government; government is carried on in the Queen’s name; sovereignty
is attributed to the Queen in Parliament; wide legal powers are vested in

Her Majesty or in Her Majesty in Council; the courts are the Queen’s
courts. Coronations, royal weddings and funerals, and an investiture of a
Prince of Wales , 2 are great national occasions, bringing the past into the
present amid splendid pageantry and ancient ritual. The Queen is pre-
eminently a ‘dignified ’ 3 element in the British constitution. She is also a
pillar of the Established Church, an exemplar of family virtue, a personage
to whom deference is paid by all in public life in a society where habits of
deference are diminishing. She embodies the hereditary principle at a
time when entitlement to the exercise of authority or the enjoyment of a
preferred statusby reason of birth is increasingly questioned. She has the
misfortune to be required to live in a glare of publicity and to have
reposed in her expectations which no ordinary mortal can hope to fulfil.
The smallest indiscretion or verbal lapse may be the subject of adverse
comment to which she will be unable to reply on her own behalf. She must,

1. By far the best modern account is to be found in Sir Ivor Jennings’s Cabinet
Government (3rd edn), especially chs. 12-14. The most recent royal biographies, the
Duke of Windsor’s A King's Story Sir Harold Nicolson’s King George V and Sir
,

John Wheeler-Bennett’s King George VI, are also instructive. For more popular
accounts of the role of the monarchy, see Jeremy Murray-Brown (ed.). The Monarchy
and its Future (1969); Andrew Duncan, The Reality of Monarchy (1970); Willie Hamil-
ton, My Queen andl(\915). Detailed factual information is to be found in the Report
of the Select Committee on the Civil List, 1971 (H.C. 29 (1971-72)).
2. On which see Blunder, Brown, Ewbank and Nossiter (1971) 19 Political Studies
149.
3. The term used by Walter Bagehot in his classic study, The English Constitution
(Fontana edn), p. 61.

The Crown and the Royal Prerogative 97

therefore, endeavour so to comport herself as to give offence to nobody;
not only must she never do or say the wrong thing, but she must always
do and say the right thing, irrespective of her private inclinations. Although,
in En gland at least, republican sentiment is very weak, the strength of
positive enthusiasm for the monarchy may have diminished in recent
years; some of the magic and mystery of monarchy have (almost inevit-
ably) rubbed off, but a revival of stronger monarchical sentiment, perhaps
based on more modem foundations, is always possible. 4
From the late Victorian era till the middle years of the present century,
the monarchy was an important factor cementing the unity of the British
Empire. Local nationalist sentiment in the colonies was subdued by the
well-inculcated loyalty of simple peoples to the occupant of the throne.
In those self-governing Dominions which were populated mainly by
settlers of British stock, the growth of national self-assertion could be
accommodated with the fundamental concept of common allegiance to a
common and indivisible Crown. This concept broke down in the Irish
Free State (Eire), and then in South Africa. In 1949 the Commonwealth
Prime Ministers agreed to accept the continuance of India’s membership
of the Commonwealth as a republic on the understanding that India
would recognize the King as Head of the Commonwealth. Today, when
there are thirty-six full and independent members of the* Commonwealth,
the Queen is head of State in only eleven of them and is represented (except

in the United Kingdom) by a Governor-General; twenty are republics and

5
five have indigenous monarchs. She remains Head of the Commonwealth,
but in this symbolical capacity she exercises no constitutional function. For
each of those Commonwealth countries of which she is still head of State
she has a separate title.
It was assumed that a convention recited in the preamble to the Statute

of Westminster 1931 - that the assent of the Parliaments of the Dominions

was required for any change in the law touching the succession to the
throne or the royal style and titles - applied to all independent Common-
wealth countries of which she was head of State. The Dominion Prime
Ministers were consulted in 1936 by Baldwin, the United Kingdom Prime
Minister, to ascertain whether they would approve of Edward VUI’s
proposed marriage to Mrs Simpson; a majority of them emphatically
agreed with the British Government’s opposition to the idea, and Edward
VIE abdicated. Appropriate legislation was then passed by the United

4. cf. the favourable impact made by the television film, Royal Family and the
,
personal popularity of the present Prince of Wales (note 2).
5. Malaysia, Lesotho (formerly Basutoland), Swaziland, Tonga and Western Samoa.
The Republic of Nauru was a ‘special member See
’. ch; 30.

98 The Executive
Kingdom Parliament to give effect to the King’s decision and 10 exc!”dc
6
him and his descendants from the line of succession. The conventional
procedures were also followed in 1948 when George VI ceased to be
Emperor of India, and 1953 when Elizabeth II adopted separate titles for
7
her several realms.
Today the personal characteristics of a monarch’s proposed consort
would be unlikely to arouse strong emotions outside the United Kingdom.
Since, moreover, the number of independent Commonwealth
countries

continuing to owe allegiance to Her Majesty will diminish as a result of

republican trends, the constitutional niceties relating to the law

touching
the succession to the throne and the royal style and titles will
probably be
8
reduced to matters of small practical consequence.
The principal convention of the British constitution is that the Queen
shall exercise her formal legal powers only upon and in
accordance with
the advice of her Ministers, save in a few exceptional situations. In inde-
pendent Commonwealth countries the powers of the Governor-General,
her personal representative, are similarly restricted, except in so far as
9
they may have been enlarged or attenuated by the text of the constitution.
This is not to say that the monarch must be a mere cypher. As Bagehot
wrote, 10 she has ‘the right to be consulted, the right to encourage, the
right to warn’. He could have added that she also has the right to offer,
on her own initiative, suggestions and advice to her Ministers even where
she obliged in the last resort to accept the formal advice tendered to her.
is

To be more explicit, she has the conventional rights to receive Cabinet

papers and minutes, to be kept adequately informed by the Prime Minister
(with whom she has regular weekly audiences) on matters of national

6. His Majesty’s Declaration of Abdication Act 1936.

7. The Royal Titles Act 1953 recognized the authority of the Queen to adopt a new
title for the United Kingdom and for the other territories for whose foreign relations

the United Kingdom Government was responsible. The style and title proclaimed for the
United Kingdom and its dependencies was ‘Elizabeth II, by the Grace of God of the
United Kingdom of Great Britain and Northern Ireland and of her other Realms and
Territories Queen, Head of the Commonwealth, Defender of the Faith*. See further
de Smith (1953) 2 I.C.L.Q. 263. The validity of this measure in relation to Scotland
(she was the first Elizabeth to be Queen of Scotland) was unsuccessfully challenged in
MacCormick v. Lord Advocate 1953 S.C. 396, partly on the grounds of lack of locus
standi.
8. The adoption of a separate royal title for a newly independent Commonwealth
country of which Her Majesty remains Queen has not recently been accompanied by
the assent of the Parliaments of other independent Commonwealth countries. To this
extent the convention recited in 1931 has partly lapsed.
9. See generally de Smith, The New Commonwealth and its Constitutions, ch. 3, See

also pp. 49, 647.

10. Bagehot, op. cit., p. 111.

The Crown and the Royal Prerogative 99

 policy, to receive Foreign Office dispatchesand telegrams and other State
papers, 11 and proposed appointments and awards to be
to be notified of
made in her name so that she can express her views informally. She can
make such private comments as she thinks fit; she can remonstrate and
offer strong objections to a proposed course of action. How much atten-
tion is paid to her views will depend upon the context and her personal
experience and stature. Any objection that she may raise to the intro-
duction of politically controversial legislation to which the Cabinet is
committed is unlikely to be pressed or taken seriously, particularly if the
Government is not of a conservative complexion; the monarch, aware of
the monarchy’s conservative image, 12 is obliged to use extreme tact. On
the other hand, the advice that is tendered to her as to non-political

appointments (for example, to archbishoprics) may well be coloured by

the monarch’s private views, especially if she is as familiar with the possible
candidates as is the Prime Minister and if she will subsequently have
personal contacts with the holder of the office. At this level the monarch’s
influence may be considerable. More generally, the length and range of
her experience of public affairs (the Queen celebrates her silver jubilee in

1977), and her personal acquaintance with a large number of overseas

dignitaries, may lend weight to suggestions she chooses to offer. George VI
was never a political sage; but there are some grounds for believing that
* his comments in 1945 may have been instrumental in persuading Attlee to

t
reconsider and then change his original intention of placing Bevin in the
:
Treasury and Dalton in the Foreign Office; 13 and we know that in 1944 he
took it upon himself in effect to direct Churchill not to accompany the
invasion force to Normandy. 14 George V had a mind of his own, as well as
a high place in popular esteem, and his habits of gruff and forthright
11. Which take her two or three hours a day to read. Memorandum of the Queen’s
Private Secretary to the Select Committee on the Civil List (H.C. 29 (1971-72)),
Minutes of Evidence, App. 13, § 3.
12. Victoria, after 1868, was an unabashed Conservative partisan, and not infre-
quently exceeded the limits of constitutional propriety in expressing her views. Edward
VII, neither as partisan nor as diligent, goton well with both Conservative and Liberal
Governments. George V and George VI, profoundly conservative in temperament and
sympathies, had a clear grasp of the implications of limited monarchy, behaved almost
invariably with scrupulous constitutional decorum, and had friendly personal regions
with non-Conservative Prime Ministers. Edward VIII, less conventional in tempera-
ment and given to serious lapses of discretion (see especially Keith Middlemas and
John Barnes, Baldwin (1969). pp. 978-80), fell foul of his Conservative Ministers, but
there was no foundation for the belief that his political sympathies lay with the Left;
see, for example, his own admission in A King's Story (note 1), pp. 276-7.
13. Wheeler-Bennett, op. cit. This supposition was, however, discounted in 1959 by
Earl Attlee. The accuracy of Attlee’s recollection of the matter is not beyond question;
see Tom Driberg (1969) 50 The Parliamentarian at 165.
14. W. S. Churchill, The Second World War, vol. 5, Closing the Ring, pp. 547-50.

100 The Executive

expression doubtless influenced not only the manner in which advice was
presented to him but also, on occasion, the substance of that advice. He
appears to have exercised some influence over senior military appoint-
ments; his expostulations addressed to the Prime Minister over the forcible
feeding of militant suffragettes probably conduced to a change of policy;
he did his best, though with scant success, to lower the political tempera-
15
ture during the recurrent Irish troubles in the first half of his reign.
In times of national crisis the role of a non-partisan head of State asa
bridge-builder is potentially significant. When the possibility of war
civil

in Ireland over the home-rule issue became imminent in 1914, George V

took the initiative in convening an inter-party conference, with the Prime
Minister’s agreement, and addressed its opening session. In 1931, after
the collapse of Ramsay MacDonald’s Labour Government, he encouraged
the formation of a National Government under MacDonald’s leadership,
but did not exert any improper pressure. If the normal machinery of
democratic government breaks down, the monarch’s ill-defined residuary
discretionary powers may have to be exercised in novel or highly unusual
circumstances. Obviously personal interventions of this kind may imperil
the status of the monarchy; they are therefore justifiable only as the least
of evils. If only because one cannot readily envisage all these hypothetical
situations,it is impracticable to state exhaustively the scope of the residual

powers. However, the main situations in which the Queen has, or may
possibly have, a conventional right to exercise her prerogative powers^-
without or against ministerial advice can be briefly listed:

Appointment ofa Prime Minister

On several occasions during the past fifty years the choice of a new Prime
Minister upon theresignation of the incumbent has not been pre-deter-
mined by constitutional rules, and the monarch has had to exercise a
17
judicious discretion. For reasons to be explained in a later chapter, the
Queen has now been relieved of this responsibility save where no ffarty

leader commands a majority in the House of Commons.

Dismissal ofa Government

If a Government, having lost its majority in the House of Commons, were

to insiston remaining in office instead of offering its resignation or advising
a dissolution, the Queen would be justified, after the lapse of a reasonable

15. Nicolson, op. cit., passim.

16. For the definition of prerogative, see pp. 113-15.
17. See pp. 149-51.

The Crown and the Royal Prerogative 101

period of time, in requesting the Prime Minister to advise her to dissolve
Parliament and, if he were to refuse, in dismissing him and his Ministers.
She would also, it is submitted, be justified in dismissing her Ministers if
they were purporting to subvert the democratic basis of the constitution -
for example, by prolonging the life of a Parliament in order to avoid
defeat at a General Election, or by obtaining an electoral majority through
duress or fraudulent manipulation of the poll. Expediency would be the
only factor restricting her discretion. Since such an intervention on her
part would tend, in Asquith’s phrase, 18 to make the Crown ‘the football
of contending factions’ at an ensuing General Election, and since no
Government has been unambiguously dismissed since 1783, 19 this, the
most drastic form of royal initiative, must be a recourse of last resort, an
ultimate weapon which is liable to destroy its user.
A recent drama in Australia is instructive. The Queen’s representative,
the Governor-General Sir John Kerr, was emphatically of the opinion that
he had the power and indeed the duty under the prerogative to dismiss Mr
Whitlam and his Government in November 1975. The majority opposition
in the Senate refused to pass appropriation bills because of alleged minis-
terial improprieties in obtaining overseas loans; Mr Whitlam, who had a
majority in the House of Representatives, would only recommend a Senate,
not a General Election; Sir John was given an undertaking by the Leader
of the Opposition, Mr Fraser, that, as Prime Minister, he would recom-
mend a General Election; Sir John then dismissed Mr Whitlam. Mr Fraser
formed a minority government the Senate passed the bills, and Mr Fraser’s
;

party won the promised General Election (in which Asquith’s fears about
footballs were amply justified). Both the Governor-General and the Chief
Justice of Australia were of the view that a British Government which
could not procure the passage of legislation to raise revenue and which
refused to recommend a General Election or to resign could be properly
dismissed by, the Queen.

Insistence on a dissolution

Much the same considerations apply as those applicable to the dismissal

of a Government. It is true that the Queen might urge upon the Prime
Minister that a dissolution would be in the best interests of the country,
and he might reluctantly agree to advise her to dissolve. But if he did not
agree, and the Queen were to insist on a dissolution, then she would have
to remove the Prime Minister and find a new one; the procedure upon a
dissolution of Parliament entails the making of an Order in Council and
18. Quoted in Jennings, op. cit., p. 408.
19. For the equivocal precedent of 1834, see Jennings, op. cit., pp. 403-5.

102 The Executive

 ,

the issue of a royal proclamation under the Great Seal, and this requires
the cooperation of Ministers. Unless, therefore, the Prime Minister's own
colleagues were prepared to form a new Government, the Queen would
have to send for the Leader of the Opposition and ask him to form a
Government for the purpose of an immediate dissolution. She would then
become a ‘football of contending factions’.
To this general analysis, one 'qualification must be added; she may
possibly have a right to insist on a dissolution before agreeing to exercise
her prerogative to create new peers in order to sw&mp opposition to the
Government in the House of Lords. 20

Refusal of a dissolution

If a Prime Minister were improperly to request a dissolution, the Queen

would at least be entitled, and might perhaps be obliged, to reject it. For
example, if a Prime Minister whose party had been defeated by the
Opposition party at a General Election were to request an immediate
second dissolution on the ground that the victory of his opponents had
been obtained by misrepresentations to the electorate, or if Neville
Chamberlain in 1940 had, instead of resigning, requested a dissolution at
a time when the country was threatened with military defeat, the monarch
could justifiably refuse, since resignation would be the only proper course
for the Prime Minister to adopt. Undoubtedly there are other situations
in which a request for a dissolution could be refused; cogent arguments
to this effect have been advanced over the years by monarchs, their
advisers, and writers of authority. Confident identification of those situ-
ations is not easy. In the first place, in the United Kingdom there has been
no unequivocal instance of an absolute rejection of a request for a dis-
solution in modern times, 21 though on several occasions requests have
been granted with reluctance. Secondly, the absence of precedents for a
refusalmeans that the scope of the power to refuse has to be inferred
from general constitutional principles; and opinions will differ both on

20. See pp. 105-6.

21. In November 1910 George V was thought to have refused a request for dissolu-
tion but to have changed his mind after discussing the matter with senior Ministers:
Jennings, op. cit., p. 424. See, however, the more equivocal account of this episode
given by Sir Harold Nicolson in his official biography, King George V, pp. 125-39
and 150.
For extensive examinations of refusals of requests for dissolution by Govcrnors-
General and Governors in self-governing Commonwealth countries, see Eugene
Forsey, The Royal Power of Dissolution of Parliament in the British Commonwealth ;
H. V. Evatt, The King and his Dominion Governors (2nd cdn). See also B. S. Markcsinis,
The Theory and Practice oj Dissolution oj Parliament (1972).

The Crown and the Royal Prerogative 103

the definition of those principles and the inferences to be drawn from
them. Thirdly, some modem writers have argued that the usage of acced-
ing to requests has mysteriously hardened into a binding convention never
to refuse a request, or that the power to refuse exists ‘in theory but not
in practice’, or that the monarch is too remote, from political realities or
too likely to be swayed by conservative influence or prejudice or too vul-
nerable to criticism to exercise an independent discretion. Hence, such a
refusal would now be highly controversial, unless the request itself was
manifestly improper; and this fact alone must make any attempt at
definition highly tentative.
Perhaps the following proposition would command a wide measure of
support the Queen
: may properly refuse a Prime Minister’s request for a
dissolution if she has substantial grounds for believing (i) that an alterna-
tive Government, enjoying the confidence of a majority of the House of
Commons, can be formed without a General Election, and (ii) that a
General Election held at that time would be clearly prejudicial to the
national interest.
As thus formulated, her power could seldom be appropriately exercised
except where no party leader in the House of Commons enjoyed an overall
22
majority .Even then it might prove impolitic for her to exercise the
power,. The minority Prime Minister might resign at once, protesting
volubly, instead of acquiescing quietly in her decision; and she might be
mistaken in her belief that a stable alternative Government could be
formed without an election, in which case she would be obliged to grant
the new Prime Minister what she had refused to his predecessor, thus
23
conveying in some quarters an impression of partisanship Protests
.

notwithstanding, a refusal would probably be justified and broadly accept-

able if a Prime Minister, placed in a minority within his own Cabinet and
threatened with repudiation by his parliamentary party, suddenly asked
for a dissolution in order to forestall the prospect of his imm inent super-

22. Though Neville Chamberlain (in the hypothetical case mentioned above). still
enjoyed the support of his Cabinet and a majority of the House. Refusal of a request
for a dissolution in these circumstances would have been justified, however, by reason
of extreme national danger.
23. This was the embarrassing situation in which Lord Byng, the Governor-General
of Canada, found himself in 1926. It does not follow that in refusing a dissolution to
Mackenzie King and then granting one to Meighen, the former Opposition leader
(who lost the ensuing General Election), Lord Byng had acted unconstitutionally;
but Mackenzie King insisted that he had in fact so acted. See Forsey, op. cit., and p.
102 for the Whitlam affair.
In 1924, George V granted a dissolution to Ramsay MacDonald when the first
Labour Government was defeated on a matter of confidence in the House. He did not,
however, consider himself constitutionally obliged to grant the request.

104 The Executive -

 24
session. Refusal might be still more readily justifiable if the rebels were
known to be prepared Government with an opposition
to form a coalition
party, or the country were in the throes of a serious economic crisis or
if

widespread civil strife. A fortiori, a Prime Minister who has actually been
repudiated by his own parliamentary party in favour of one of his col-
leagues can claim no constitutional right at all to demand a dissolution.
It is which the fact that a
also possible to imagine a marginal situation in
General Election had been held only a short while previously might tip the
balance against granting a request for a dissolution.

Coercion of the Lords15

In 1712, Queen Anne created twelve new hereditary peers in order to

secure the approval of the House of Lords for a peace policy. In 1832,
William IV reluctantly accepted (after having initially rejected) his
Government’s advice to create a number of Whig peers to carry
sufficient
the Reform Bill (substantially enlarging the franchise and reforming the
electoral constituencies) through the House of Lords, which had rejected
three similar bills in rapid succession. The creation of the new peerages
became unnecessary because some Tory peers, apprised of the threat,
abstained from voting against the bill, which duly passed. A broadly
similar situation arose in 1910-11. The Lords had rejected the Liberal
Finance Bill in 1909. They agreed to pass it only after the Government
had gone to the country and had been returned to power (though the
Liberal Party lost its absolute majority in the House of Commons) in
January 1910. 26 The Government had decided to introduce legislation to
reduce to a suspensory veto the power of the Lords to reject a bill outright.
Edward VII expressed the view that it would not be-justifiable to ask him

24. This was broadly the position in South Africa in September 1939, when the
Governor-General, Sir Patrick Duncan, refused a dissolution to General Hertzog,
who favoured a policy of neutrality against the views of a majority of his colleagues
and his party, and had been placed in a minority on this issue in the House. Hertzog
resigned and Smuts, having accepted office as Prime Minister, was able to form a
Government with a stable majority, cf. Markesinis, op. cit., chs. 5, 7, arguing that
royal discretion is narrower than is suggested in the main text above, and rejecting the
still broader view adopted by Forsey. It would not have been justifiable for the

Governor of Northern Ireland to refuse a dissolution to Captain O’Neill in 1969; the

Prime Minister was seeking, albeit unsuccessfully, to subdue rebellion within the ranks
of the Unionist Party by appealing to the electorate, but he was known to have the
backing of a majority in his Cabinet and retained a majority in the House.
25. See Jennings, op. cit., pp. 428-48, for an analysis of the precedents.
26. The balance between the Liberals and the Conservatives was held by the Irish
Nationalists and the Labour Party, who generally supported the Liberal Government.
See Roy Jenkins, Mr Balfour*s Poodle , and ch. 13.

The Crown and the Royal Prerogative 1 05

to exercise his prerogative to swamp the Lords with new hereditary peers
in order to pass such legislation unless the electorate had shown them-
selves to be in favour of it. In May 1910 he died, shortly after the intro-
duction of the Parliament Asquith, the Prime Minister, agreed to
Bill.

advise the new King, George V, to dissolve Parliament so that the elec-
torate could pronounce its verdict on the bill. The King reluctantly agreed
to the creation of the requisite number of peers if the Government were
returned and the Lords refused to pass the bill. This contingent promise
was not disclosed till after the Government had been returned to power at
the second General Election of 1910 - the results were almost identical to
those in the January election - and the Lords, in July 1911, had passed
wrecking amendments to the bill. In August 1911 the Lords accepted the
rejection of most of their amendments by the Commons, and passed the
bill by a small majority.

Neither in 1831-2 nor in 1910-11 was it accepted that the Government

had an absolute right to require the monarch to exercise his prerogative
for such a purpose. Jennings, commenting on the present conventional
27
rules, wrote that it was ‘clear that the power to refuse is extant’. How-
ever, an outright refusal might compromise the political neutrality of the
monarchy. The imposition of a requirement that approval of the electorate
28
for the measure for which the exercise of the prerogative was so sought
should be obtained might well be justifiable. 29 In practice the situation
first

is unlikely to arise, now that the Parliament Acts have reduced the sus-

pensory veto of the Lords to one month for money bills and just over a
year for other public bills. 30

Refusal of the royal assent

In 1913 and 1914, George V appears to have thought that he retained a

residual power to refuse his assent to the Irish Home Rule Bill,
31
though
he did Refusal of the royal assent on the ground that
in fact assent to it.

the monarch strongly disapproved of a bill or that it was intensely con-

troversial would nevertheless be unconstitutional. The only circumstances
in which the withholding of the royal assent might be justifiable would be
if the Government itself were to advise such a course - a highly improbable

27. Jennings, op. cit., p. 447. Any reasoned opinion expressed by Sir Ivor Jennings
is entitled to the greatest respect.
28. On the statutory power to create life peerages, see pp. 288, 289, 299-300.
29. See p. 102, on insistence upon a dissolution.
30. See, however, pp. 296-7 for a recent ministerial - but lighthearted - threat about
the creation of many new peers.
31. Jennings, op. cit., pp. 395-400.

1 06 The Executive
 ;

contingency - or possibly if it was notorious that a bill had been passed

32

in disregard of mandatory procedural requirements; but since the Govern-

ment in the latter situation would be of the opinion that the deviation
would not affect the validity of the measure once it had been assented to,
prudence would suggest the giving of assent.

33
Appointments and honours

The Queen personally appoints members of her own private household;

by far the most important member of her stalf is her Private Secretary,
who maintains contact with the Prime Minister and overseas dignitaries
on her behalf, offers her and others informal counsel on matters of consti-
tutional propriety and ceremonial decorum, and has been known to occupy
a key position, as a liaison officer, in delicate constitutional situations.
When other appointments are made in her name, and when titles,

honours and dignities are bestowed, she must act on the Prime Minister’s
advice (or, in the case of Commonwealth countries of which she is Queen,
on the advice of the relevant Prime Minister) except on the appointment
of a new Prime Minister and in the award of certain honours. Membership
of the Royal Victorian Order is granted for personal services to the
monarchy; normally no political implication is to be read into such an
award, but in November 1965, after the unlawful unilateral declaration
of independence by the Ministers in Southern Rhodesia, she created Sir
Humphrey Gibbs, the loyalist Governor, a K.C.V.O., acting in her
personal discretion. When he retired in July 1969 she awarded him the
G.C.V.O. She is also entitled to make appointments to the Order of Merit
and the Orders of the Garter and the Thistle in her discretion. Suggestions
may, of course, emanate from the Prime Minister, just as she may herself
initiate suggestions for the bestowal of titles, honours and dignities in
respect of which she must act on the Prime Minister’s advice.
The Queen also has numerous social and ceremonial functions to per-
form in her capacity as head of State. 34 Among them are State visits to
foreign and Commonwealth countries and the reception of heads of State
from overseas. In the constitutional law of the United Kingdom a great
many formal acts have to be done by her in the traditional manner, and
require her personal signature or approval. She also presides in person at
meetings of the Privy Council, and reads the Queen’s speech at the opening

32. It could hardly arise unless a change of Government occurred without a General
Election within the brief interval between the passage of the bill and its presentation
for assent.
33. See generally P. G. Richards, Patronage in British Government Jennings Op.
cit., ch. 14.
34. H.C. 29 (1970-71), § 17, and note 11.

The Crown and the Royal Prerogative 107

 of a new Parliament or a parliamentary session. She receives letters of
credence from newly appointed foreign ambassadors, receives homage
from new bishops, and holds some two hundred formal audiences of one
sort or another in the course of a year, apart from dispensing a great deal
of informal entertainment.

Legal rules affecting the monarchy

Title to the Crown
is hereditary; the line of succession depends partly on

statute and on customary common-law rules. Upon the death or

partly
abdication of a monarch, the throne and the prerogatives of the Crown
35
pass at once - there is no interregnum: ‘the king never dies’ - to the
person next in succession. Lineal Protestant descendants of Sophia,
36
Electress of Hanover, are alone eligible to succeed. If the reigning
monarch has children, sons succeed before daughters, and in accordance
with primogeniture. When George VI died leaving two daughters and no
son, was assumed that the elder daughter was entitled to succeed as
it

Elizabeth H, and did not inherit the throne jointly with her sister as a co-
parcener in accordance with the feudal law of succession to real property.
Roman Catholics and persons marrying Roman Catholics are excluded
by statute from the throne; and the monarch must be in communion with
the Church of England, declare himself to be a Protestant, swear to main-
tain the Established Churches in England and Scotland, and take the
Coronation Oath. 37 Until the attitude of the Church of England towards
divorce is changed, it can be assumed that the monarch will be advised
not to take a divorced person as consort. 38
The law relating to the succession to the throne is uniform throughout
Her Majesty’s dominions. The diversification of the royal titles in 1953
The last interregnum in British history occurred in 1688-9. James II was deemed
35.
to have abdicated on 11 December 1688 (the day he first tried to flee the country and
dropped the Great Seal into the Thames). ‘From that day until the day when William
and Mary accepted the crown, 13 February 1689, there was no king of England’
(Maitland, Constitutional History of England p. 284).
,

36. Act of Settlement 1701. Edward VIII and his issue were excluded by His
Majesty’s Declaration of Abdication Act 1936.
37. Provisions to this effect are contained inter alia in the Bill of Rights 1689, the
Act of Settlement 1701 and the Succession to the Crown Act 1707. The Coronation Oath,
prescribed by statute immediately after the Revolution of 1688, and subsequently modi-
fiedby statute, has since been modified without statutory authority. Elizabeth II swore to
govern the peoples of her realms and territories according to their respective laws and
customs, and to maintain the established Protestant religion in the United Kingdom.
38. This is to be inferred from the circumstances surrounding Edward VIlI’s de-
cision in 1936 to abdicate, the King having been advised by the Cabinet that they and
the Dominion Governments could not approve of his proposed marriage to Mrs
Simpson.

;108. The Executive

 39
implied that the Crown was no longer indivisible or undivided; but
although the Queen of Jamaica, for example, is probably to be regarded
as a different legal person from (though the same natural person as) the
Queen of the United Kingdom and its dependent territories, the Queen
of some of the older Commonwealth countries.is perhaps still regarded as
the same legal person as the Queen in the United Kingdom even though
she bears a different title. However, in so far as the Crown is still un-
divided, it may be unwise to read implications into the concept. There
is no doubt that legal proceedings can be brought by one of Her Majesty’s

realms against another, or by one Australian state against another, or

that the prerogatives of the Crown in right of Canada may be at variance
with her corresponding prerogatives in right of a province of Canada.
Immediately upon a demise of the Crown, it is customary to convene
an Accession Council, composed of 'Privy Councillors and other leading
citizens - in 1952, Commonwealth High Commissioners in London were
also present- by whom the Queen is formally proclaimed. The Coronation
Service will take place some months later; it is attended by picturesque
ceremonial, but has no significance in relation to the legal attributes or
powers of the monarch. Edward VIII was never crowned.
For most legal purposes no distinction is drawn between the Crown
and the monarch; and references to the Sovereign for the time being are
40
to be construed as references to the Crown. In some contexts a distinction
must necessarily be drawn. Thus, a conspiracy to cause the death, or an
attempt on the life, of the Queen Regnant is treason, which is still punish-
able by death. 41 A conspiracy or attempt to depose the Queen is treason
42
felony. Ordinary civil proceedings can be brought against the Crown but
not against the Queen. 43 The general concept of allegiance, however,
imports duties owed to the Queen which can equally be expressed in the
form of duties owed to the Crown.

The royalfamily
Miscellaneous rules of law and custom affect members of the royal family.
Under the archaic Royal Marriages Act 1772, the marriage of a descendant
of George II (other than the issue of princesses who have married into

39. See p. 99. Contrast Williams v. Howarth [1905] A.C. 551. See further de Smith,
The Vocabulary of Commonwealth Relations (1954).
40. Interpretation Act 1889, s. 30. See further, p. 113.
41. Statute of Treasons 1351. It is also treason to commit these offences in respect
of the King’s consort, but not in respect of the consort of a Queen Regnant.
42. Treason Felony Act 1848, which carries a maximum penalty of life imprison-
ment.
43. See further, ch. 28.

The Crown and the Royal Prerogative 109

foreign families) is void unless the Queen has signified her formal con-
44
sent. Such a person may marry without her consent if he is over twenty-
five, provided that he gives twelve months’ notice to the Privy Council

and the two Houses of Parliament do not register objection during that
period. The monarch’s consort does not in general occupy a special
position in the eyes of the law, though violation of the chastity of a female
consort is treason. 45 Prince Albert was designated as Prince Consort, and
he exercised a substantial and beneficent influence over Queen Victoria in
constitutional matters till his death in 1861. Prince Philip has not been so
designated, but has been accorded official precedence immediately after
the Queen; and a regency were to become necessary in certain circum-
if
46
stances during Her Majesty’s
reign, he would become Regent. The
monarch’s eldest son becomes Duke of Cornwall on birth; he will later
be created Prince of Wales. His life, the life and chastity of the Princess of
Wales during marriage, and the chastity of the monarch’s eldest daughter
being unmarried are protected by the law of treason. 47 The title of ‘Royal
Highness’ is conferred upon the sons and daughters of the monarch and
on the sons’ wives, and on the children of the monarch’s sons. The social
impact, both at home and abroad, of the royal family and its individual
members is an interesting psychological phenomenon which cannot be
pursued within the compass of this book.

Regency and Counsellors of State

No general statutory provision existed until 1937 for the exercise of the
royal functions monarch were an infant, or were incapacitated or
if the
The Regency Act 1937 dealt with these matters; it
absent from the realm.
was amended by Acts of 1943 and 1953. Under the present law:
(i) There is to be a regency if the Sovereign isunder eighteen years of
age, or if the Sovereign is incapacitated by infirmity of mind or body or
is ‘for some definite cause not available’ (for example through being a
prisoner of war
48
) for performing the royal functions. A declaration as to
the Sovereign’s incapacity or unavailability is to be made by the Sovereign’s
spouse, the Lord Chancellor, the Speaker of the House of Commons, the

44. For a persuasive argument to the effect that the Act of 1772 does not apply to
any of Queen Victoria’s descendants, see C. d’Olivier Farran (1951) 14 Mod. L. Rev 53. .

45. Statute of Treasons 1351. See also note 41. r

‘

46. Regency Act 1953, s. 1. The circumstances would be (i) if a dhild of Her Majesty
succeeded to the throne while under eighteen years of age; or (ii) if Her Majesty
became incapacitated and no other person was eligible to be Regent.
47. Statute of Treasons 1351.
48. Or, arguably, if the Sovereign were simply abroad on a visit, although the Act
has never been invoked in such a circumstance.

110 The Executive

 Lord Chief Justice and the Master of the Rolls, or any three or more of
them; and a regency will continue till a declaration as to the removal of
the incapacity is similarly made. The Regent is to be that person of full
49
age who is next in the line of succession to the throne , provided that he
is a British subject resident in the United Kingdom.and is not disqualified

on religious grounds. He may exercise all royal functions except that he is

precluded from assenting to a bill to alter the succession to the throne or
to repeal the Acts securing the Scottish religion and Church 50 .

(ii) Sovereign is suffering from a lesser

If the degree of incapacity than
would justify the establishment of a regency, or if she is or intends to be
temporarily absent from the realm, she may appoint Counsellors of State
(not a Council of State) by letters patent and delegate to them such royal
functions as may be specified. They may not, however, dissolve Parlia-
ment except on her express instructions 51 or grant any title or dignity of
,

the peerage. The Counsellors of State are to be the spouse of the Sovereign,
the four persons next in succession to the throne (unless disqualified for
being Regent or absent from the realm), and Queen Elizabeth the Queen
Mother.

Crown revenues52

For many centuries no distinction was drawn in financial matters between

the King in his public capacity (the Crown) and the King in his private
capacity. The King was expected to live of his own, through feudal dues,
income from Crown lands (including the Duchies of Cornwall and
Lancaster) and sundry prerogative fiscal rights, such as treasure trove and
the forfeited property of outlaws and convicted felons; and to provide for
the ordinary expenses of government out of his privy purse. Only for
special purposes was he to have recourse to Parliament in order to obtain
extra money by the levying of taxation. When he did come to Parliament,
the Commons (especially under the early Stuarts) were apt to demand
redress of grievances before agreeing to grant taxes or to appropriate

49. Subject to the proviso summarized in note 46.

50. For the possible effect of disregard of this prohibition (Regency Act 1937,
s. 4(2)), see p. 86.
51. When Queen was on a Caribbean tour in 1966 leaving Counsellors of State,
the
the request and assent for a dissolution were communicated in letters exchanged
between the Prime Minister and Her Majesty: Wilson, The Labour Government 1964-
1970, A Personal Record p. 215.
,

52. For the substantial body of law on this matter, sec Halshury's Laws of England,
4th edn, title ‘Constitutional Law’. For a brief historical survey see Maitland, Con-
stitutional History of England, pp. 430-38. For the present position, see Report of the
Select Committee on the Civil List, 1971 (note 1).

The Crown and the Royal Prerogative 111

 supplies. Gradually this system broke down and parliamentary grants
were made to the Sovereign for the time being for his private purposes
during his lifetime. In exchange the Sovereign surrendered to the Exchequer
most of the time-honoured hereditary revenues of the Crown.
In 1800 the Sovereign was enabled by statute to hold land in a private
capacity; this is alienable and is rateable. But the Queen is personally
exempt from most forms of taxation. 53 Today the Queen’s private estates
are managed separately from the Crown lands, which are exempt from
fiscal burdens and are administered by Crown Estate Commissioners.

A Civil List Act is passed at the beginning of each reign, providing for
annual sums of money 54 for Her Majesty’s privy purse, salaries and ex-
penses of her household, and miscellaneous matters including annuities
and expenses of some other members of the royal family. The Civil List Act
1972, amending the Civil List Act 1952, now regulates the royal grant from
55
Parliament. The main difference introduced by the 1972 Act is that the

annual sums may be increased by the Treasury at any time by statutory

instrument, subject only to the power of the House of Commons to annul
it; the requirement for a fresh statute for each increase was thus removed.

Signification of the royal pleasure

Fortunately, not every act of government done in the Queen’s name

requires her personal participation. Nevertheless, either by custom or by
statute, she has to take part in a great number of such acts. For example,
when an Order in Council has to be made, or when any other transaction
has to take place in Council, she must preside at a formal meeting of the
Privy Council. About ten meetings are held annually. Some royal appoint-
56
ments (for example, ambassadors) are made under the royal sign manual
(the Queen’s personal signature); some (for example, appointments of
most Cabinet Ministers) are made by personal delivery of the seal of office.
Many classes of acts (for example, the issue of royal proclamations, writs
for the holding of elections, letters patent for the conferment of peerages,
the appointment of royal commissions, and charters of incorporation for

53. For the complex rules and practices in these matters, see the 1971^ Report,
especially Appendices 1 and 12.
54. The Civil List is charged on the Consolidated Fund and does not, therefore,
require annual authorization by Parliament.
55. This Act increased the Civil List from £475,000 to £980,000 a year. The Civil
List may be supplemented by the Treasury out of money provided by Parliament:
Act 1975. £1,665,000 is now payable. Some royal expenses are borne on
Civil List
departmental votes. The Queen has not drawn the sums allocated to her privy purse.
56. Among other acts done under the royal sign manual is the granting of a royal
pardon. See also Criminal Law Act 1967, s. 9.

112 The Executive

 boroughs and universities, and the ratification of certain treaties) involve
the affixing of the Great Seal of the Realm, of which the Lord Chancellor
is custodian; this can normally be brought into use only by virtue of a

warrant under the royal sign manual.

The royal prerogative57

The nature singular and eccentrical’, 58 can be

royal prerogative, ‘in its

roughly described as those inherent legal attributes which are unique to

the Crown. For ‘the Crown’ we can substitute ‘the Queen’. Prerogative
powers belong to the Queen as a person as well as to the institution called
the Crown; in law the Queen is the Crown, or Her Majesty’s Govern-
ment, 59 or the State, except where an Act of Parliament or common sense
60
differentiates them expressly or by necessary implication. Powers and
duties are often vested by statute directly in named Ministers. But pre-
rogatives are non-statutory attributes of the Crown, not statutory attributes
of its servants.
Prerogatives are inherent in so far as they are derived from customary
common law. They are legal in so far as they are recognized and enforced
by courts; and, as the Case of Proclamations (161 1) 61 made abundantly
plain, their ambit is determinable by the courts. When Blackstone de-
scribed the prerogative as that special pre-eminence which the King hath,
‘

over and above all other persons, and out of the ordinary course of the
common law in right of his regal dignity’, 62 he was not asserting that the
,

Crown could conclusively determine the limits of its own prerogative; he

was merely emphasizing the uniqueness of the prerogative. Prerogative
attributes are not shared with subjects, though there may be close simi-
larities; the royal prerogative in time of real or apprehended war differs
in degree rather than kind from the general common-law doctrine of

57. For an excellent survey of history and the prerogative, see D. L. Keir and
F. H. Lawson, Cases in Constitutional Law (5th edn), ch. 2. See further W. S. Holds-
worth, History of English Law vol. 4, pp. 201 ff; vol. 6, pp. 20 ff; vol. 10, pp. 140-
,

425.
58. Blackstone, Commentaries , vol. 1, p. 238.
59. Or ‘Her Majesty’s Government in the United Kingdom’. See, for
Jamaica Independence Act 1962, s. 1(1), and other statutes dealing with external
relations.
60. See pp. 109, 111-12. For a skilful critique, see Geoffrey Marshall, Constitu-
tionalTheory , pp. 17-34.
61. 12 Co. Rep. 74. A proclamation'forbidding under penalty new building in and
around London was held to be unlawful. Similar proclamations had been issued and
enforced under Elizabeth I - for example, a proclamation of 7 July 1580 made at
Nonsuch.
62. loc. cit. (italics supplied).

The Crown and the Royal Prerogative 113

necessity. Recently the courts have stopped using the term ‘Crown
privilege’ to describe the power to procure the exclusion of evidence from
judicial proceedings on grounds of public interest, and it must be doubted
whether this is to be regarded as a prerogative at all, because it is not a
power peculiar to the Crown. 63
The prerogative consists mainly of executive governmental powers -
powers to conduct foreign relations, to make war and peace, to regulate
.the disposition of the armed forces, to appoint and dismiss Ministers, to
dissolve Parliament, to assent to bills, and so on. The exercise of these
powers is controlled by constitutional convention. It also includes im-
munities (for example, the Queen’s personal immunity from suit or
prosecution, and from liability to income tax), privileges (for example,
proprietary rights over royal fish, the status of the Crown as a preferred
creditor) and miscellaneous attributes, such as the prerogative of pro-
tection which is in some aspects a legal duty.
Other definitions can be considered. To Dicey, 64 the royal prerogative
was ‘the residue of discretionary or arbitrary authority, which at any
given time is legally left in the hands of the Crown*. This definition is
incomplete because it is restricted to powers. However, it includes some
important features. It stresses the residual features of the prerogative
within the realm. The
prerogative is traceable to the days before Parlia-
ment ever cannot be enlarged by the Crown except in certain
existed, but
dependent territories. ‘It is 350 years and a civil war too late for the
Queen’s courts to broaden the prerogative.’ 65 Prerogatives can be and
have been abrogated or diminished by statute; the Crown Proceedings
Act 1947 deprived the Crown (but not the monarch in her private capacity)
of various immunities in civil litigation. They have also been lost by other
means. For ceitain colonies the Crown could lose its plenary legislative
powers under the prerogative by granting a representative legislature. 66
Prerogative powers in the administration of justice passed into the hands
of Her Majesty’s judges. 67 Other prerogatives came to be shared by

63. See especially R. v. Lewes JJ ex p. Home Secretary [1973] A.C. 388 (H.L.).
Another reason may be that such claims, even if made by Ministers, are reviewable by
8

the courts: see Conway v. Rimmer [1968] A.C. 910, and ch. 28. ^
-

64. Introduction to the Study of the Law of the Constitution (10th edn), p. 424. His
definition has been cited in a number of judgments.
65. British Broadcasting Corporation v. Johns [1965] Ch. 32 at 79, per Diplock L.J.
See also The Zamora [1916] 2 A.C. 77 (the Crown may mitigate but not extend its own
prerogative in prize law).
66. Campbell v. Hall (1774) 1 Cowp. 204 and ch. 30.
67. See especially Prohibitions del Roy (1607) 12 Co. Rep. 63 (King could not ad-
minister justice in person). For criticisms of the casuistic reasoning adopted by the
judges, see Dicey, op. tit., p. 18.

114 The Executive

 \

68
subjects and lost their original character and function . Some appear to
69
have quietly withered away Yet a vanishing prerogative is a strange
.

creature, for there is no generally accepted principle of law that a pre-

70
rogative may be lost merely by desuetude .

Prerogative discretionary powers are also absolute (which is what

Dicey meant by ‘arbitrary ’) in the eyes of the courts, in the sense that once
the existence, scope and form of a prerogative power are established to
their satisfaction, the courts have disclaimed jurisdiction to review the
propriety or adequacy of the grounds upon which it has been exercised 71 .

The principle has been reiterated in recent cases where attempts have been
made to impugn the exercise of prerogative powers to conclude treaties 71 ,

disseminate information 73 and to refuse to commute a sentence 74 In this

, .

respect prerogative powers must be differentiated from statutory dis-

cretionary powers. With but few exceptions, an exercise of a statutory
discretion can be challenged in the courts by a person aggrieved on the
grounds that it has been directed to a purpose outside the contemplation
of the parent Act 75 But it would seem that no court would be prepared to
.

review the grounds for refusal or revocation of a passport, because this is a

royal prerogative , 76 chough a court might arrive at the conclusion that a
power claimed by the Crown (for example, to take property for defence
purposes) existed in law but imported a duty to pay compensation to the
person whose interests were encroached upon 77 .

For example, the prerogative writ nc exeat regno by which the monarch could (and
68.
possibly still canj(see J. W. Bridge (1972) 88 L.Q.R. 83) command a subject not to
leave the realm, at least in time of emergency; cf. Felton v. Callis (1969) 1 Q.B. 200
showing the strict limitations of the scope of the writ in proceedings between subjects.
69. For example, the power to impress men into the navy.
70. F. W. Maitland, Constitutional History of England p. 418.
71. See, for example, R v. Allen (1862) 1 B.
. &
S. 850 (grounds for entering a nolle
prosequi ); Engelke v. Musmann [1928] A.C. 433 (recognition of diplomatic represen-
tative for purpose of according diplomatic immunity - a matter now regulated by
statute); Chandler v.D.P.P. [1964] A.C. 763 (disposition of armed forces; though cf.
the reservation entered by Lord Devlm at 809-10) and see p. 129.
12. Blackburn v. Att.-Gen. [1971] 1 W.L.R. 1037; McWhirter v. Att.-Gcn. [1972]
C.M.L. Rep. 882.
73. Jenkins v. Att.-Gen .,
The Times 13 August 1971. ,

Hanratty v. Lord Butler, The Times 12 May 1971.

74. ,

75. See, for example, Padfield v. Minister of Agriculture [1968] A.C. 997.
76. Secretary of State for Home Department v. Lakdawalla
[1972] 1mm. App.
Rep. 26.
77. For example, Burmah Oil Co. v. Lord Advocate [1965] A.C. 75. In practice
the
distinction between jurisdiction to determine the ambit of a prerogative and
lack of
jurisdiction to determine the it may properly be exercised is not
grounds on which
clear-cut, and in some cases
so indistinct that judicial review of prerogative powers
it is

is assimilated to judicial review of statutory powers. Sec D. G. T. Williams,

[1971]
Camb. L.J. 178.

The Crown and the Royal Prerogative 116

Some generalproblems
If one were to devote a whole book to examining the scope of the royal
prerogative today, 78 one would still leave a number of questions un-
answered. Writing in 1888, Maitland observed that there was ‘often great
uncertainty as to the exact limits’ of the prerogative; and he concluded
his short but masterly survey with these words: ‘Thus our course is set
about with difficulties, with prerogatives disused, with prerogatives of
doubtful existence, with prerogatives which exist by sufferance, merely
79
because no one has thought it worth while to abolish them.’ The problem
of identification, then, is very real. No comprehensive authoritative state-
ment was offered in medieval times; and in the seventeenth century the
scope of the prerogative was hotly disputed. We can identify, as a matter
of historical interest, some of the disputed and undisputed prerogatives
of which the Crown has been explicitly deprived by statute. But the con-
cept of the prerogative as a bundle of inherent and residuary attributes is
intrinsically vague. In 1957 a Committee of Privy Councillors thought that
telephone-tapping authorized by a Minister might possibly be justified as
a manifestation of an ancient prerogative power to intercept communi-
80
cations between subjects; yet it is more than doubtful whether such a
prerogative ever existed. That the Crown still has certain prerogative
powers in time of grave national emergency to enter upon, take and
destroy private property seems clear. The conditions under which these
powers are exercisable are far from clear, partly because the powers were
never precisely defined, partly because the scope of the war prerogative
was not considered in general terms by the courts for nearly three hundred
years, and partly because in modern times various statutory provisions
have been made for these matters. 81 Again, it is not clear how far the royal
prerogative in foreign affairs and the concept of an ‘act of State’ are
coterminous. 82

Archaic prerogatives: a suggestion

In a recent Scottish appeal to the House of Lords, Lord Simon of Glais-

dale said that ‘a rule of the English common law, once clearly established,

78. cf. Joseph Cbitty, The Prerogatives of the Crown (the best-known monograph,
written in the early nineteenth century); A. B. Keith, The King and the Imperial Crown ;
G. S. Robertson, Civil Proceedings by and against the Crown.
79. Constitutional History of England pp. 418, 421.
,

80. Cmnd 283 (1957), pt 1. cf.R. F. V. Heuston, Essays in Constitutional Law (2nd
edn), pp. 50-52.
81. See Att.-Gen. v. De Keysets Royal Hotel Ltd [ 1920] A.C. 508; Burmah Oil Co.
v. Lord Advocate [1965] A.C. 75; Nissan Att.-Gen . [1970]
v. AC. 179.
82. Nissan's case (see note 81 and pp. 130-32).

116 The Executive

 does not become extinct merely by disuse’; it may ‘go into a cataleptic
it can be revived ‘in propitious U-
trance’, but, like Sleeping Beauty,
cumstances’. It cannot, however, revive if it is ‘grossly anomalous and
anachronistic ’. 83 Probably this proposition offers the best available
explanation of the fate of obsolescent prerogatives like the powers to
forbid a subject to leave the realm, and to impress him into naval ser-
vice . 84 Conceivably the former power might revive in circumstances which
are, admittedly, hard to envisage 85 but the ;
latter power must surely be
unresponsive to any Prince Charming.

Statute andprerogative powers

The between statute and prerogative remains strangely

relationship
abstruse. Statutes can bind the Crown 86 and a prerogative can be abol-
;

ished by express words. Alternatively the wording of a statute may leave

no room for doubt that Parliament, when conferring powers on the
Crown, intended to leave the prerogative intact 87 or to maintain the ;

prerogative but regulate the way in which it can be exercised 88 Puzzles .

arise where Parliament neither extinguishes nor saves a prerogative but

simply confers powers on the Crown in an area hitherto occupied only by
prerogative. In such a situation, the Crown must indeed abide by any
statutory restrictions imposed on the exercise of its powers (for example,
procedural requirements, or a duty to pay compensation) and cannot fall
back on its original absolute prerogative. To the extent of this inconsist-
ency the prerogative is abrogated 89 But suppose a statute merely covers
.

the same ground as prerogative without expressly restricting the Crown’s

-competence. Do statute and prerogative then co-exist, or is the prerogative
swallowed up and superseded ? 90 If superseded, does it revive when the
statute is repealed?
Answers to these questions must be tentative. Because the preroga-
tive is tenacious and the Crown is not readily held to be bound by mere

83. McKendrick v. Sinclair 1972 S.L.T. (H.L.) 110 at 116, 117.

84. See p. 115, notes 68, 69.
85. Particularly in view of provisions of Community law relating to freedom of
movement, and the development of international law doctrine on the matter.
86. See generally, pp. 119-21.
87. For example, Emergency Powers (Defence) Act 1939, s. 9; Crown Proceedings
Act 1947, ss. 11(1), 40(1).
88. See Royal Assent Act 1967.
89. Att.-Gen. v. De Keysets Royal Hotel Ltd [ 1920] A.C. 508 (requisitioning).
90. See the differences of opinion on this point expressed by Lord Denning M.R.
and Russell L.J. in Sabally and N'Jie v. Att.-Gen. [1965] 1 Q.B. 273. See also K. 0«
Roberts-Wray, Commonwealth and Colonial Law pp. 164-6, 169-72, 190-7,
,

The Crown and the Royal Prerogative 117

implication,
91
the courts are unlikely to hold that a prerogative (for
example, to declare the extent of waters 92 ) has been excluded
territorial

by implication unless legislation evinces a very clear intention to cover the

93
field in' question exhaustively.
Assuming that a prerogative is superseded by a statute and the statute

is later repealed, it is submitted that the prerogative ought not to be held

94
to revive unless it is a major governmental attribute or is otherwise
consonant with contemporary conditions. Hence archaic Crown privi-
95

leges or immunities expressly abolished by the Crown Proceedings Act

1947 should not be construed as having been restored merely by a repeal
of the relevant parts of the Act.

The prerogative today: domestic affairs

96
Prerogative powers in an emergency will be considered in a later chapter.
The other surviving prerogatives in domestic affairs are a mixed bag of
residual loose ends; on as reminders of feudal days, some are
some linger
of major importance in the conduct of public affairs. Most of the pre-
rogatives are rights and powers, but it may be convenient to touch first on
the main prerogative attributes which are in the nature of privileges,
immuni ties and duties.

The King {or Queen Regnant) can do no wrong Over the years the pre-
.

rogative of perfection has borne a variety of meanings, ranging from the

total unaccountability of the monarch to any human agency, to the simple
rule that the monarch in person cannot be prosecuted or sued for a
wrongful act in the courts. The latter rule still prevails, though it is possible

91. Seep. 119.

92. R. v. Kent JJ., ex p. Lye [1967] 2 Q.B. 173; Post Office v.
Estuary Radio Ltd
[1968] 2 Q.B. 740; The Fagernes [1927] P. 31 1 ; Territorial
Waters Order in Council 1964
(S.I. 1965, p. 6452A); Territorial Waters Jurisdiction
Act 1878.
exercisable through
93. See the cases in which prerogative wardship jurisdiction,
with the care
the High Court, has been invoked in areas covered by legislation dealing
and education of children. The courts have asserted the continued existence of the
prerogative but are reluctant to invoke it (see, for example, Re Af (an Infant) [1961]
See
Ch. 328; Re Mohamed Arif [1968] Ch. 643 (a Commonwealth immigrant case)).
also note 114.
94. As in the De Keyser case (see above; power to requisition for defence purposes
in wartime), in which event the prerogative may reasonably be held to lie in
suspense;

see [1920] A.C. at 539-540. See also ibid., 554, 561.

95. cf. New Windsor Corporation v. Taylor [1899] A.C. 41 (local customary franchise
of tollage superseded by statutory right; statute later repealed; held, old franchise
was not thereby revived). The terms of sections 11(1) and 38(2) {a) of the Interpretation
Act 1889 may not be irrelevant in this general context. See also p. 117.
96. See ch. 23. *

118 The Executive

 to bring a petition of right against the monarch in the High Court for
alleged breaches of contract and a few other legal wrongs, thus obtaining
a judicial remedy unaccompanied by coercive relief. Before the Crown
Proceedings Act 1947 the King in his natural capacity was undifferentiated
from the King in his public capacity; it was therefore impossible (subject
to a small number of exceptions) to sue the Crown as a matter of strict
law for tortious acts or omissions; the Crown could not even be made
vicariously liable for the torts of its servants committed in the course of
their employment, for this would be to impute wrongdoing to the monarch.
Fortunately this absurd anachronism has been substantially removed from
our law. 97
Since the days of Elizabeth I it has been acknowledged that acts done
by the Crown purportedly under the prerogative may be held by the
98 -
courts to be ultra vires a proposition challenged only by the most
extreme Stuart theoreticians.
Because it may be unseemly to hold the monarch personally to account
for an invalid or potentially controversial act performed by her in her
public capacity, custom requires the participation of Ministers in most of
such acts - for example, by countersignature, or by presence at a Privy
Council meeting where formal business is transacted. Thus, it is the
Ministers who attract responsibility.

The King a preferred creditor. If a debtor is insolvent, the Crown has

is

priority asa creditor at common law. This matter is now largely regulated
by statute. But in the levying of execution or distress against the property
of a subject, the Crown still enjoys priority under the prerogative.
Time does not run against the King The normal periods of limitation did
.

not apply to the Crown in criminal proceedings and as a plaintilf in civil

litigation. In most forms of civil proceedings, and to a lesser extent in
criminal proceedings, this immunity has been abrogated by statute.

The Crown is not bound by statute save by express words or necessary

implication. In its origin a prerogative immunity, this proposition can also
be formulated as a particular rule of statutory interpretation. It covers

the imposition of obligations, restraints and other burdens. General

words directed to such ends will normally be construed as excluding the
Crown unless the purpose of the Act would be frustrated were the Crown
99
held to be exempt from their operation. To apply this principle rigidly

97. See ch. 28,where the state of the law is considered in more detail.
98. See, for example, Willion v, Berkley (1561) Plow. 223; Case of Monopolies
(16021 11 Co. Rep. 84b.
99. Bombay Province v. Bombay Municipal Council [1947J A.C. 88; though cf.
Madras Electric Supply CorpnLtdv Boartancll 1955] A.C. 667 (whore the word 'person*
.

The Crown and the Royal Prerogative 1*19

today would be unreasonable. Although in some contexts it would be
incongruous or contrary to public policy to hold the Crown impliedly
subject to the same liabilities as the public at large, in others it would be
unjust to hold the Crown exempt merely because an Act would be still
workable despite the exemption of the Crown from its ambit. But the
principle has, on the whole, been rigidly applied; and Crown immunity
has been understood to mean that Crown tenants, and tenants of a body
ancillary to the regulararmed forces, do not enjoy the protection of the
Rent Acts 100 that government Departments do not have to obtain planning
,

permission in order to effect a material change in the use of land occupied

by them , 101 that land occupied for Crown purposes (for example, for use
302 103
as county courts ) is immune from local rates , that a court cannot
make an order for the abatement of a nuisance committed in a hospital
104
administered under the National Health Service and even (till the Road
,

Traffic Acts were expressed to bind the Crown) that a Crown servant on
duty driving a vehicle for Crown purposes and under superior orders to
deliver a load quickly, could not be convicted of exceeding a statutory
speed limit 105 .

The narrower principle, also founded on the prerogative, that the

Crown is immune from central government taxation in the absence of
express words or necessary intendment, has a more secure and rational
basis. Why should an intention
be imputed to Parliament to raise money
from the Government? Government Departments are exempt from

an Income Tax Act was held to include the Crown). The prerogative
in a special rule in
immunity in Scots law is possibly less far-reaching: J. D. B. Mitchell [1957] Public Law
304. And for the earlier English rule that the Crown was impliedly bound by statutes
passed for the public good, see Chitty on Prerogative (1820), p. 382.
100. Territorial Forces Association v. Nichols [1949] 1 K.B. 35; Tamlin v. Hannaford
[1950] 1 K.B. 18 (dicta). This rule has since been modified by statute.
101. Ministry of Agriculture v. Jenkins [1963] 2 Q.B. 317.
102. R. v. Manchester Overseers (1854) 3 E. & B. 336.
103. See generally Mersey Docks and Harbour Board Trustees v. Cameron (1864) 11
H.L.C. at 464-5. See now General Rate Act 1967. In any event, the Crown does
in practice pay contributions in lieu of rates in respect of exempt hereditaments.
104. Nottingham Area No. J Hospital Management Committee v. Owen [1958] 1 Q.B
50. For another aspect of Crown immunity (in respect of patented drugs) in connection
with the National Health Service, see Pfizer Corporation Ltd v. Ministry of Health [1965]
A.C. 512. Workers employed by area health authorities are Crown servants: Wood v.
Leeds Area Health Authority [1974] I.C.R. 535.
105. Cooper v. Hawkins [1904] 2 KB. 164. See now Road Traffic Regulation Act
1967, s. 97, binding the Crown. For a critique of Cooper v. Hawkins (questioning the
idea of ‘superior orders’ in this context see Glanville Williams, Crown Proceedings ,

pp. 49-52.

120 The Executive

 income tax; so isher personal capacity 106 civil servants in
the Queen in ;

their private capacities are not, of course, exempt. However, difficult

marginal cases arise. Public bodies which are servants or agents of the
Crown, or which act as instruments of the Crown, are exempt. But how
and where is a court to draw the line? The general functions of local
authorities, affairs of nationalized
and public corporations conducting the
industries, are not performed as servants or agents of the Crown; they
enjoy a substantial degree of independence from the Crown, and their
functions are not unambiguously within the province of central govern-
ment 107 they do not, therefore, attract the immunities and privileges of
;

the Crown 108 For similar reasons the BBC has been held to be subject
.

to income tax 109 The Custodian of Enemy Property was held to be a

.

Crown servant, mainly because of the degree of control that Ministers

were entitled to exercise over him, and tax was therefore not payable
on the income from property disposed of by him while acting in that
capacity 110 Hair-splitting distinctions may still have to be drawn where
.

it is doubtful whether a body is a Crown agent, or where a body is clearly

not a Crown agent but performs functions associated with the business of
central government.

The prerogative ofprotection This prerogative does not

. fit neatly into any
analytical category. In some aspects it isa duty, in others a power 111 .

The Crown has a duty to ‘protect* its own subjects by granting them
diplomatic protection in foreign countries; but this duty is not directly
enforceable in a court of law, and in any event the ‘duty* is now probably
limited to citizens of the United Kingdom and Colonies and British
protected persons. It is under no legal duty to grant them passports. Nor
is it under any legal duty to offer armed protection to such of its intrepid
subjects as engage in hazardous ventures on the high seas or in foreign
countries; if it decides in its discretion to offer this form of protection, it

106. See p. 112, above.

107. See Mersey Docks and Harbour Board Trustees v. Gibbs (1866) L.R. 1 H.L. 93
on the separate legal status of autonomous and semi-autonomous public authorities.
108. See Tamlin v. Hannaford (note 100), on nationalized industries; and generally
J. A. G. Griffith (1952) 9 U. of Toronto L.J. 169. The now defunct Central Land Board
was held to be a Crown servant; Glasgow Corporation v. Central Land Board 1956 S.C.
(H.L.) 1. That nationalized industries do not enjoy Crown injmunities is now usually
made clear by statute. See, for example, Post Office Act 1969, s. 6(5); p. 213.
109. British Broadcasting Corporation v. Johns [1965] A.C. 32.
1 10. Bank voor Handel en Scheepvaart v. Administrator of Hungarian Property [1954]
A.C. 584.
111. See two thought-provoking articles by H. Lauterpacht (1947) 9 Camb.L.J. 330,
and Glanville Williams (1948) 10 Camb.LJ. 54. See also Clive Parry (ed.), A British
Digest of International Law, vol. 5, s. 3 and pp. 423-6. ;

The Crown and the Royal Prerogative 1 21

ran impose a condition that the subject shall pay for the protection
offered .
112
The Crown does owe limited duties of protection to persons
extent and
owing allegiance, including aliens owing local allegiance; the
113
implications of these duties will be considered later .

to
The capacity of the Crown as parens patriae implied a prerogative
protect the welfare of infants. This power or duty has long been exercised
it has become
only through the Queen’s courts by judges; in other words,
prerogative. But
an ‘ordinary’ prerogative as distinct from an ‘absolute’
prerogative
an alien infant owing local allegiance is within the scope of the
protection, so that the Chancery Division has jurisdiction to exercise
of
114
a ward of court . In so far as the
its discretion whether to make him

prerogative of protection encompasses the superintendence of charities

and the welfare of persons of unsound mind, it appears to have been

almost entirely engulfed by statute.

Miscellaneous domestic prerogatives

Power to appoint and dismiss Ministers, to dissolve and prorogue Par-

prerogative. As,
liament, and to assent to legislation is derived from the
the fountain of honour the Queen creates hereditary peerages and confers
other titles and dignities
115
As head of the Established Church, she
.

appoints archbishops and diocesan bishops, and assents to measures of the ,

General Synod approved by both Houses of Parliament. As head of the

armed forces, she directs their disposition and commissions officers.

War is declared and a state of war terminated by virtue of the prerogative.

116
diffusion of government information
The the determination Of the
,

117 118
extent of territorial waters and the regulation of the civil service fall

partly or wholly within the scope of the prerogative. Whether the exclusion

and expulsion of friendly aliens was permissible under the prerogative is

At t. -Gen. [1932] 2 K.B. 197. See also Glasbrook Bros

112. China Navigation Co. v. .

Glamorgan C.C. [1925] A.C. 270 (no charge can be required for supplying reasonable
v.
police protection, since there is a pre-existing legal duty to afford such protection;
a charge can, however, be imposed for providing protection going beyond- what is
reasonably necessary); see now Police Act 1964, s. 15, and p. 371, note 6.
113. See pp. 423-6.
114. ReP . Ch. 568. See also note 93.
(G.E.) (an Infant) [1965]
Labour and Conservative Prime Ministers have not recommended
115. Since 1965
the creation of any new hereditary peerages or baronetcies, and none has been created
since then.
116. See note 73.
117. See p. 118.
118. Seech. 7.

122 The Executive;

 doubtful; 119 these matters are in any event regulated exclusively by
statutory authority today. 120 Enemy aliens can be interned or expelled.
The issue and revocation of a United Kingdom passport fall within the
prerogative.
The Queen is the fountain of justice, and in relatmn to the adminis-
tration of justice, several prerogatives remain vested in the Crown. There
isa prerogative power to create new courts, but only courts to administer
the common law. 121 Prosecutions for indictable offehces are conducted
in her name. The power to enter a nolle prosequi , to stop or discontinue a
prosecution on indictment, is exercised by the Attorney-General 122 on
behalf of Her Majesty; this power is occasionally used to secure the dis-
continuance of a private prosecution. The prerogative of pardon (exer-
cisable in England only on the advice of the Home Secretary) is used to
grant absolute or conditional pardons to persons convicted of criminal
123
offences, or to remit part of the sentence of imprisonment or the fine
imposed. 124 A conditional pardon substitutes, by commutation, a different
penalty for that imposed by the court; whether the person convicted could
reject the condition is a nice question 125 in the last resort the Crown could,
;

if itsaw fit, grant a free pardon. In 1967 statutory provision was made for
the release of prisoners on parole. 126
The Crown also has prerogative rights and powers in respect of bona
vacantia, sturgeon and certain swans and whales, 127 coinage, the granting
of charters of incorporation, the award of franchises (including the right
to hold markets and fairs, and to collect tolls 128 from bridges or ferries).

119. Thornberry (1963) 12 I.C.L.Q. at 422-8; Parry (ed.), A British Digest of

International Law , vol. 6, pp. 83-105. Dicta in modern cases support the idea of a
prerogative to refuse admission (see M usgrove v. Chun Teeong Toy [1891] A.C. 272;
Poll v. Lord Advocate (1899) 1 F. (Ct. of Sess.) 823; Schmidt v. Home Secretary [1969)
2 Ch. 149) and to deport ( Att.-Gen for Canada v. Cain [1906] A.C. 542), but their
.

authority is questionable.
120. See ch. 16.
121. Re Lord Bishop of Natal (1864) 3 Moo. P.C.C. (N.S.) 115.
122. See Edwards, The Law Officers of the Crown pp. 227-37.
J. LI. J.
,

123. It would seem that a pardon may be granted before conviction; but this
power
is not exercised. The line between pardon before conviction and the
unlawful exercise
of dispensing power is thin. For surviving restrictions on the power of pardon,
see
Wade and Phillips, Constitutional Law (8th edn), pp. 321-3.
124. For a recent example see 911 H.C. Deb. 229-37 (II May
1976) - the case of
Mr George Davis, whose prison sentence was remitted.
125. See Brett (1957) 20 Mod. L. Rev. 131.
126. Criminal Justice Act 1967, ss. 59-62.
127. Other archaic prerogative proprietary rights were
abolished by the Wild
Creatures and Forest Laws Act 1971.
128. See Nyali Ltd v. Att.-Getn [1956] 1 Q.B. 1.

The Crown and the Royal Prerogative 123

the construction and supervision of harbours, and the printing and publi-
cation of statutes and other legislative instruments, the authorized version
of the Bible and the Book of Common Prayer .
129

The prerogative today: external affairs

General

External relations are conducted pre-eminently under prerogative powers.

Not only the declaration of war, the dispatch of armed forces and the
annexation of territoiy, but also the conclusion of treaties, the accrediting
and reception of diplomats, the recognition of new states and revolutionary
governments fall within the scope of the prerogative. Such acts are some-
times called acts of State - assertions of State sovereignty in international
relations. The term ‘acts of State’ is also used in other specialized senses;
and it does not invariably connote an act done in pursuance of the royal
130
prerogative .

The Crown had a prerogative power to legislate for the Channel Islands
(which are not part of the United Kingdom), but the power has not been
exercised in respect of Jersey for many years, and if it has indeed survived
the introduction of representative legislatures in Jersey and Guernsey it
probably does not extend to the imposition of taxation without the consent
of the Ins ular Authorities, or to the abrogation of other ancient privileges
131
guaranteed to the Islands .

As we have already indicated, prerogative powers in relation to depen-

132
dent territories are not merely a residue For colonies acquired by
.

conquest or cession they are plenary in the absence of special circum-

133
stances; and they may be lost but later resumed For colonies acquired
.

by settlement, its prerogative legislative power is more limited and has

been largely superseded by statute. In those dependent territories which
are not British possessions the prerogative is again more than a residue.
In colonial-type protectorates (of which the only surviving specimen today
is the Solomon Islands) the legislative powers of the Crown, though
regulated by the Foreign Jurisdiction Acts, were derived from the prero-
gative; and the Crown can extend its own jurisdiction even though it may

129. And may license -their printing and publication by others, but not so as to
authorize a breach of copyright: Oxford and Cambridge Universities v. Eyre and
Spottiswoode Ltd [1964] Ch. 736.
130. See pp. 131-2.
131. See ch. 30.
132. p. 114.
133. Campbell v. Hall (1774) 1 Cowp. 204; Sammut v. Strickland [1938] A.C. 678.

124 The Executive

have originally been limited. 134 In British protected states (the sole survivor
in 1977 being Brunei) which had indigenous rulers and enjoyed a degree of
autonomy, the Crown did not claim unlimited jurisdiction; but it acquired
133
such jurisdiction as it possessed by virtue of the prerogative, and we must
assume that in terms of British constitutional law the Crown was com-
petent to enlarge as well as diminish it by prerogative.

Treaties and treaty implementation

By ‘treaties’ we mean international agreements. They may be called

treaties, conventions, covenants, pacts, charters, agreements, protocols,
even statutes, declarations or exchanges of notes. They may be bilateral
or multilateral ; they may be concluded between heads of State, or between
governments, or between governments and international organizations.
They may deal with political, defence, economic, legal, social or cultural
matters. Any such international instrument to which the United Kingdom
is a party binds the United Kingdom in international law. Normally it

becomes binding only when ratified by the Executive, though some agree-
ments have effect upon signature, and a few have effect only when approved
by Act of Parliament. The treaty itself may specify when and in what
circumstances it shall come into effect. It is a constitutional usage, and
possibly a binding convention, to lay the texts of international agreements
before both Houses of Parliament for twenty-one days before ratification,
if ratification is required. 136

The conclusion of a treaty is an act of State and an exercise of the

royal prerogative, even though the Queen has not played a formal role in
the matter (for example, by granting full powers to plenipotentiaries to
negotiate and sign on her behalf, and by ratifying J;he treaty under the
Great Seal); the prerogative, or part of it, may be exercised by the Sec-

retary of State for Foreign and Commonwealth Affairs as her delegate.

We need not go into the details of this complex branch of the lav/. But one
point stands out. Whereas in a number of legal systems (for example, the
United States of America, West Germany), a treaty is self-executing - i.e.
it becomes part of the municipal law, the law of the land, as soon as it is

finally concluded 137 - this is not the rule in United Kingdom law. With

134. Sobhuza II v. Miller [1926] A.C. 518; Nyali v. Att.-Gen. [1956] 1 Q.B.l (affd.
[1957] A.C. 253); Roberts- Wray, Commonwealth and Colonial Law pp. 187-97; ,

H. F. Morris and James S. Read, Indirect Rule and the Search for Justice (1972), ch. 2,
135. Roberts-Wray, op. cit., p. 116.
136. 171 H.C. Deb. 2001 (1 April 1924). This is commonly called the ‘Ponsonby’
rule.
137. In the United States, however, treaties require the sanction of a two-thirds’
majority in the Senate; instruments known as executive agreements do not.

The Crown and the Royal Prerogative 125

few exceptions, internationally binding obligations still need to be given
legislative effect if they are to be enforced as law by the courts of this
country. 138 They may be given such effect if their provisions (or some of
them) are incorporated in or scheduled to an Act of Parliament, or in a
statutory instrument (for example, an Order in Council) made under the
139
authority of an Act of Parliament, or in a prerogative instrument in the
140
case of territorial waters.
There is at least one clear exception to the rule that the Executive can-
not alter the law applied in United Kingdom courts merely by incurring
international obligations. The Crown can by agreement abridge its own
prerogative powers in relation to a protected state, or indeed abrogate
them altogether and recognize the independence of the state (for example,
141
the Maidive Islands, Kuwait or Tonga ) ;
but these questions are unlikely
to come before a United Kingdom court. European Community treaties

are a second potential exception, for according to Community law certain

provisions of such treaties may be ‘directly applicable’ in the laws of
142
member States. There may be another exception. In a flight of fancy,
Walter Bagehot asserted that the Crown had a prerogative power to cede
Cornwall. 143 It is very doubtful whether the Crown has a prerogative to
cede any part of the United Kingdom. But there have been past examples
of the cession of parts of Her Majesty’s dominions beyond the seas by
144
prerogative acts (for example, the recognition of American indepen-
dence in 1783), especially in treaties of peace. If this prerogative has
disappeared, it is not clear how, though in modem practice the transfer

138. This rule is clearly settled; the leading authority is The Parlement Beige (1879)
4 P.D. 129 at 154.
139. For example, extradition treaties, under the Extradition Acts. If a treaty needs
legislative implementation, it is unlikely to be ratified by the Crown until the necessary
legislation is passed.
Note 92.
140.
For Tonga, see Cmnd 4490 (1970). Consequential legislation was passed in
141.
respect of Tonga, which remained within the Commonwealth (Tonga Act 1970), but
not for the others.
142. This is a complex point. Article 95(1) of the EEC Treaty (prohibiting various
discriminatory trade practices) is directly applicable, without further enactment, in the
laws of member States. But the United Kingdom has incorporated this rule into muni-
cipal law by implication in enacting the European Communities Act 1972; see ss.
1, 2(1), 3, Sched. 1. Under the Act, future Community treaties (which may contain
directly applicable provisions) are to be authenticated by Order in Council (s. 1(3) —
will this be giving statutory effect to such a treaty?), and the Order in Council will have
to be approved in draft by resolutions of both Houses if the United Kingdom is itself
a party to it (ibid.).
143. The English Constitution Introduction to the 2nd edn (Fontana edn), p. 287,
,

144. See generally Roberts-Wray, op. cit., ch. 4. See also Damodhar Gordhan v,
Deoram Kanji (1876) 1 App. Cas. 332.

126 The Executive

 '

of British territory and the implementation of a peace treaty are always

effected by statute.
If the United Kingdom had a federal constitution, a situation might
arise (as it has arisen in Canada) whereby the Executive had an unfettered
power to enter into international obligations, binding on the State in
international law, but Parliament lacked full power to give effect to its
undertakings because the subject-matter of the agreement fell within an
exclusive domain of regional competence.
The general rule is that a treaty is not a source of legal rights directly
enforceable against the Crown in United Kingdom courts, even though it
may be intended to benefit particular individuals (for example, where the
Crown receives money from a foreign government by way of compensation
for injuries done to them); 145 it is an act of State, not a transaction in the
nature of a contract or a declaration of trust. 146 Under the Foreign Com-
pensation Acts 1950 and 1969, the allocation of sums received from foreign
governments under treaty as compensation for the confiscation or destruc-
tion of British-owned property is made on a discretionary basis by an
independent statutory body, the Foreign Compensation Commission.
A claimant before the Commission may impugn in the courts a deter-
mination that he did not comply with the statutory conditions necessary
to establish a claim, or a determination reached in disregard of minimum
procedural standards, 147 but he cannot obtain a judicial declaration that
he is entitled to any particular sum. Community treaties stand in a special
position; they are capable in Community law (adopted in this country by
the European Communities Act 1972) of conferring or imposing judicially
enforceable legal rights and obligations on individuals.

Conclusive declarations by the Crown on matters ofState

In the late Victorian era a Miss Mighell issued a writ for breach of promise
of marriage against a Mr Albert Baker; whereupon Mr Baker revealed
to the court that he was none other than the Sultan of Johorc (who had

145. Rustomjee v. R. (1876) 2 Q.B.D.69. The position is the same where the pro-
visions of the treaty have been implemented by statute: Civilian War Claimants
Association Ltd v. R. [1932] A.C. 14. But see below on Community treaties.
146. Though in the Civilian War Claimants’ Association case. Lord Atkin indicated
(at 26-7) that the position might be different if the Crown purported expressly to act
as trustee or agent for a subject.
147. Anisminic Ltd v. Foreign Compensation Commission [1969] 2 A.C. 147; cf.
Foreign Compensation Act 1950, s. 4(4); Tribunals and Inquiries Act 1958, s. 11.
See now Foreign Compensation Act 1969, s. 3, superseding s. 4(4) of the 1950 Act, and
providing for an appeal on points of law from determinations of the Commission to
the Court of Appeal. See pp. 557-8, below.

The Crown and the Royal Prerogative 127

been living for a time in England under a pseudonym), and pleaded
sovereign immunity from the jurisdiction of the court. On behalf of the
Crown, the Colonial Office obligingly certified that he was the sovereign
ruler of an independent State. The court accepted this certificate as con-
clusive evidence of the facts stated (although the claim of Johore, a
British protected state in Malaya, to be an independent international
person was tenuous in the extreme), and the defendant having thus estab-
lished his immunity from suit, Miss MighelPs action could proceed no
further.
148
This somewhat bizarre case illustrates the disinclination of the courts
to make an independent determination of certain questions of law and
fact in politically sensitive areas; they have indeed abdicated in favour of
the Executive. Some of these questions concern jurisdictional immunity:
a head of State enjoys sovereign immunity; a government of an inde-
pendent State and the public property of that State 149 enjoy state immunity;
and persons having diplomatic or consular status enjoy immunities of
various kinds, depending on their position in the diplomatic mission or
150
consulate Diplomatic and consular immunities have recently been
.

restated by statutes giving effect to the terms of multilateral international

conventions 151 Whether a person is entitled to diplomatic or consular
.

status and what category he belongs, is conclusively determined

if so, to
152
by a certificate entered by a Secretary of State these certificates are now
;

148. Mighell v. Sultan of Johore [1894] 1 Q.B. 149.

149. Difficult questions may arise as to the immunity from suit of publicly owned
vessels belonging to independent states. Two
recent decisions, Thai-Europe Tapioca
Service Ltd v. Government of Pakistan [1975] 1 W.L.R. 1485, C.A., and The Philippine
Admiral [1976] 2 W.L.R. 214, P.C., conflict on the question whether sovereign im-
munity may be claimed for commercial activities carried out by another state. The
Court of Appeal was of the view that it could be claimed, the Privy Council that it
could not.
150.For the application of these principles to situations arising in the Common-
wealth, see Roberts-Wray, Commonwealth and Colonial Law pp. 585-95. t

151. Diplomatic Privileges Act 1964; Consular Relations Act 1968. See also the
International Organizations Act 1968; Diplomatic and other Privileges Act 1971.
. 152. Broadly speaking, under the 1964 Act (i) the head of the mission and the
principal members of the staff and their families are immune not only from criminal
liability but also from most forms of civil liability; (ii) members of the administrative
and technical staff are immune from criminal liability but not from civil liability save
in respect of acts performed in the course of their official duties; (iii) members of the
domestic staff are immune neither from criminal nor from civil liability for acts outside
the course of their duties. Although a certificate tendered by the Secretary of State
is conclusive as to the matters specified in the text above, the courts retain jurisdiction
to ascertain whether, for categories (ii) and (iii), the conduct in question took place

in the course of official duties: see Empson v. Smith [1966] 1 Q.B. 426. They are also
entitled to decide questions of waiver and submission to the jurisdiction. See also
Agbor v. Metropolitan Police Commissioner 1969] 1 W.L.R. 703 for independent
•

128 The Executive

 :

given under statutory authority, but the conclusiveness of certificates on

questions of sovereign and state immunity entails an exercise of the pre-
rogative. Immunities from suit may be waived in the appropriate form.

Members of many diplomatic missions in London have taken full advantage

of their immunity by refusing to pay penalties for car parking offences.
By virtue of the prerogative, the Crown is also entitled to determine
conclusively a range of other matters

1. Whether a state of war exists between Her Majesty and a foreign

country. Thus, in one case, soon after the end of armed hostilities in the
Second World War, the Crown was still detaining and wished to deport
a German national as an enemy alien; he brought an application for a
writ of habeas corpus, contending that the state of war was at an end and
that in any case Germany no longer existed as a State ; the court accepted
as conclusive a certificate entered by a Secretary of State contradicting
153
these contentions.

2. Whether a State is recognized by Her Majesty as an independent State.

3. Whether the government of another country is recognized by

Her
Majesty as the de jure or de facto government, or as^neither. %

These issues usually arise in connection with claims to jurisdictional

immunity, but they may also arise in other context — for example, what
effect, if any, is to be accorded in English law to the enactments, orders,
154
or judgments of organs of such a political body.
Under the Foreign Jurisdiction Acts, a certificate submitted to the court
by a Secretary of State as to the extent of the jurisdiction of the Crown
in a protected state or a protectorate is conclusive, but the court is not
155
under an obligation to request such a certificate.

judicial determination of a question (whether premises were the ‘private residence of a

diplomatic agent’) arising under the 1964 Act.
153. R v. BottrilU ex p. Kuechenmeister [1947] K.B. 41.
.

154. See, for example, Carl Zeiss Stiftung v. Rayner and

Keeler Ltd (No. 2) [1967]

1 A.C. 853 (Foreign Secretary certified

that Her Majesty’s Government did not
recognize the German Democratic Republic (East Germany)
de facto or de jure, but
USSR was recognized as being entitled to exercise de jure authority there;
that the
House of Lords accepted this declaration as conclusive, but nevertheless attributed
legal effect to a decree of the unrecognized government
since it was to be regarded as a
certificate is not
subordinate organ of a recognized government). Semble such a ,

absolutely conclusive where the question is one of usurpation

of sovereignty in a
British dependency: Adams v. Adams [1971] P. 188 (Rhodesia).
On determination of the limits of United Kingdom territorial waters, see p. 118,
note 92.
155. Foreign Jurisdiction Act 1890, s. 4.

The Crown and the Royal Prerogative 129

 We must not suppose that rules such as these are eccentricities peculiar
to British constitutional law. In a number of legal systems the courts look
to the Executive for authoritative guidance on matters lying especially
within the domain of external affairs; and some systems have developed a
coherent concept of non-justiciable ‘political questions*. In this country
there is no coherent concept; moreover, some questions with marked
political overtones are decided by the courts on the basis of the evidence
and legal submissions where there is no provision for a conclusive executive
156
certificate or where no such certificate is tendered .

It is also true that in some systems the rules of international law form
part of municipal (or domestic) law, and the courts will make an inde-
pendent determination of the content and applicability of those rules. In
Britain the courts adopt a rebuttable presumption that Parliament has
not intended to legislate inconsistently with rules of public international
law,and common-law rules will, as far as practicable, be so stated as to
157
conform with corresponding international rules ; but if there is a plain
158
inconsistency, the international law rules will have to give way . Only
the Prize Court in wartime purports to apply international law as such,
and even this court must, of course, enforce statutes conflicting with inter-
national law. Rules of Community law again stand in a special position;
for United Kingdom law is to have effect subject to any relevant Com-
munity law rules 159.

Acts of State and legalproceedings 1 ^

Acts of State are primarily prerogative acts of policy in the field of external
affairs - for example, the declaration of war, the conclusion of a treaty,

156. See, for example, Adegbenro v. Akintola [1963] A.C. 614, a Privy Council
appeal (who was the lawful Premier of Western Nigeria?); Agbor's case (note 152
above; question of entitlement to occupation of diplomatic premises in London
arising out of the civil war in Nigeria); Re Al-Fin Corporation's Patent [1970] Ch. 160
(whether North Korea was a ‘foreign state’ within the meaning of s. 24 of the Patents
Act 1949; the Foreign Office explicitly refrained from expressing a view on the matter).
Contrast Buck v. At t.- Gen. [1965] Ch. 745, where the English Court of Appeal would
have disclaimed jurisdiction, as a matter of comity, to declare the constitution of a
former colony (Sierra Leone) invalid following the grant of independence ^and cases
where ulterior motives are attributed by prisoners to governments seeking their
surrender as fugitive offenders ; p. 428 below. *

157. See, for example, Salomon v. Customs and Excise Commissioners

[1967] 2 Q.B.
116. If the United Kingdom legislation purports to give effect to an international con-
vention, the wording of the convention can be considered as an aid to interpretation;
Post Office v. Estuary Radio Ltd [1968] 2 Q.B. 740. See also pp. 70-71.
158. See, for example, Cheney v. Conn [1968] 1 W.L.R. 242.
159. European Communities Act 1972, ss. 2(4), 3(1). See further
pp. 77-81.
160. For a typically illuminating short survey, see D. L. Keir and
F. H. Lawson,

130 The Executive

 ;

an annexation of territory, the recognition of a foreign sovereign, state or

government. However, there can be no all-inclusive short definition,
covering the different senses in which the term ‘act of State’ has been
used. In one aspect an act of State is a manifestation of national
sovereignty by the executive branch of government. When the courts say
that an act of State is not cognizable by municipal courts (i.e. United
Kingdom courts, and, for most purposes, the Judicial Committee of the
Privy Council), they usually mean that once it is established to their
satisfaction that an act performed by or with the authority of the Crown
or a foreign government falls within the legal concept of an act of State,
they are not concerned with the propriety of the grounds on which it has
been exercised; they do not mean that the Crown can remove a matter
from their jurisdiction by the bare assertion that it is an act of State. 161
In this sense judicial attitudes towards pleas of prerogative and acts of
State are identical.
There are, however, certain differences of substance or terminology
between some acts of State and some prerogative acts:

1. Not every prerogative act is called an act of State; the latter term is

reserved for executive acts having effect in external affairs or performed

in relation to persons not fully within the protection of the Crown. The
granting of a new charter to an English university is a prerogative act but

is not called an act of State.

2. A cause of action against the Crown can seldom be founded on a valid

act of State (for example, the conclusion of a treaty). 162 On the other hand,
a lawful exercise of the prerogative (for example, the taking of property
for defence purposes) may give rise to a justiciable claim against the
Crown for compensation. 163

Cases in Constitutional Law full studies, see W. Harrison

(5th edn), pp. 155-63. For
Moore, Act of State in English Law Wade
(1934) 15 1LY.LL. 98; Holds-
E. C. S.
worth (1941) 41 Columbia L. Rev, 1313; Collier [1968] Camb . L.J. 102. See further pp.
423-6.
161. Entick v. Carrington (1765) 19 St. Tr. 1030; Musgravc v. Pulido (1879) 5 App.
Cas. 102.
162. See p. 127; or on an annexation ( Secretary of State for India v. Kamachcc Boye
Sahaba (1859) 12 Moo. P.C.C. 22); Collier, ioc. cit., at 105-9.
163. See Nissan v. Att,-Gen. [1968] 1 Q.B. 286 (C.A.); Att.-Gen. v. De Kcyser's Royal
Hotel Ltd [1920] A.C. 508. Note also the distinction between prerogative powers and
acts of State drawn in Commercial and Estates Co. of Egypt v. Board of Trade [1925]
1 K.B. 271 (prerogative power of angary; wartime requisitioning of goods within the

realm belonging to absent neutral; compensation payable). In that case Scrutton L.J.
(at 290) and Bankes L.J. (at 297) said obiter that act of State could never be pleaded as
a defence to an action in tort arising out of an act done in the realm. But the plaintiff
was non-resident and apparently did not owe local allegiance. On principle, therefore,

The Crown and the Royal Prerogative 131

3. It is sometimes said that the term act of State refers only to acts per-
formed outside Her Majesty’s dominions. This cannot be correct. Although
acts of State can be performed outside her dominions, certain acts of State
(for example, the making of a treaty) may also be performed inside them.
The detention of an enemy alien in wartime 164 or the deportation of such a
person165 can be classified either as a prerogative act or as an act of State;
this is merely a matter of terminology.
4. It is also sometimes said that act of State cannot, whereas the royal
prerogative can, be pleaded by way of justification in proceedings instituted
by a British subject. This suggestion will be considered below.
5. In certain situations a British subject may successfully plead that an
ostensibly unlawful act is lawful because it was carried out
pursuance in
of an act of State of a foreign government, the validity of which will be
recognized by an English court. 166 Such acts would not generally be called
prerogative acts.

6. There are doubts as to the operation of the royal prerogative outside

Her Majesty’s dominions, 167 doubts which do not apply with equal force
to acts of State. That certain prerogative powers (for example, in relation
to the disposition of the armed forces, and in relation to protected states)
are exercisable on foreign soil is reasonably clear; what is not clear is where
the line is to be drawn.

7. The term
‘act of State’ is sometimes loosely used to include acts done
inpursuance of statutory authority which has superseded prerogative (for
example, the conclusiveness of a certificate as to diplomatic immunity).

Acts ofState encroaching on individual rights

An act of State has been described as an act of the executive as a matter of

‘

168 169
policy’, and as ‘an Those descriptions
exercise of sovereign power’.
fit most of the situations in which conduct has been held in judicial pro-

ceedings to constitute an act of State. But there have been cases in which

it is arguable that act of State could have been successfully pleaded, but for the fact
that the situation fell within the rules governing angary.

164. R. v. Vine Street Police Station Superintendent, exp.Liebmann[ 1916] 1 K.B. 268.
165. Netz v. Chuter Ede [1946] Ch. 224; R. v. Bo ttrill, ex p. Kuechenmeister [1947]
KJB. 41.
166. Dobree v. Napier (1836) 2 Bing N.C. 781 ; Carr v. Fracis Times and Co, [1902]
A.C. 176; Mann (1943) 59 L.Q.R . 42, 155; Zander (1959) 53 Am. JJ.L. 826. The act
must be within the foreign government’s own jurisdiction.
L67. See Nissan v. Att.-Gen. [1970] A.C. 179; note 172, below.
168. E. C. S. Wade (1934) 15 B. Y.I.L. at 103.
169. Salomon v. Secretary of State for India [1906] 1 K.B. 613 at 639.

132 The Executive

the quality of an act of State has been attributed to the individual initiative
of a not very senior Crown servant ratified by the Crown 170 On the other .

hand, the requisitioning and use of a hotel in Cyprus by British troops

engaged in a peace-keeping operation was quite recently held not to fall
within the description of an act of State 171 Since the Law Lords gave a
.

number of different reasons for their conclusion on 'this point, the case is
not helpful except in so far as it suggests that nowadays only acts which are
part of or necessarily incidental to a high-level policy decision (and possibly
other acts expressly ratified by the Crown) will be treated as acts of State.
Many of the decisions on act of State have an archaic flavour. They deal
with the annexation of territory in India and Southern Africa in the heyday
of imperial expansion, when judges often seemed to be as executive-
minded as the Executive. It is not certain how much weight should be
attached to some of these decisions; sometimes not even clear what
it is

were the material facts. But the principles laid down in them may still have
to be taken into account in connection with claims arising from acts done
by British peace-keeping forces overseas; the age of military intervention
is not over, though one can optimistically assume that nowadays inter-

vention will seldom take place except at the request or with the con-
currence of the government of the territory or country concerned or as
part of a United Nations force. Unfortunately the only modern case in
which the Crown pleaded act of State as a defence in legal proceedings
(Nissan v. Alt. -Gen .) was a disaster for students of the law. The decision of
the House of Lords lacks any clear ratio decidendi on any point now under
consideration. Important questions of law were raised but left half-
answered or unanswered, and points that once seemed clear were left
shrouded in obscurity 172 .

170. For example, Buron v. Denman (1848) 2 Ex. 167 (see below).
171. Nissan v. Att.-Gen. [1970] A.C. 179.
172. [1970] A.C. 179. For critiques, see Gilmour [1970] Public Law 120; Bridge,
(1971) 34 Mod. L. Rev. 121; Collier [1969] Camb. L.J. 166; see also H. W. R. Wade,
Administrative Law (3rd edn), pp. 293-6; de Smith (1969) 32 Mod. L. Rev. All. N, a
British subject in Cyprus, was claiming that he was entitled to (i) compensation for the
requisitioning of his hotel, and the use of the contents, under the royal prerogative;
or (ii) (iii) a declaration that he was entitled
declarations as to a breach of contract; or
to damages in tort for trespass to his chattels. The Crown denied the allegations and
also pleaded act of State; it then withdrew the defence of act of State in respect of
claim (iii). The case was not finally disposed of but determined on preliminary points
of law. No majority view emerged in the Lords as to the definition of an act of State;
the scope of the defence of act of State (for instance, when, if at aU, it was available
against British subjects; whether it was available against claims not sounding in tort);
or whether acts of State and prerogative acts were materially distinguishable; or
whether the royal prerogative to take or destroy property subject to compensation
applied outside Her Majesty’s dominions.

The Crown and the Royal Prerogative 133

 The following observations about the state of the law must therefore
be regarded as very tentative:

1.Act of State can successfully be pleaded by way of defence to an action

in tort brought by an alien in respect of an ostensibly wrongful act com-
mitted against him outside Her Majesty’s dominions by the Crown or with
the authority, antecedent or subsequent, of the Crown: Buron v. Denman
(1848), an action for trespass. 173 The rationale of this rule is twofold: an
alien in a foreign country or on the high seas does not ordinarily owe
allegiance to the Crown 174 and is therefore not entitled to the protection of
the Crown or indeed protection against the Crown; and he can look to his
own government for diplomatic redress and, if any appropriate forum
exists, the institution of proceedings for a breach of international law.
Whether these are adequate reasons for treating a deliberate wrong
perpetrated at the instance of the Crown as being a non-justiciable matter
is questionable.

2. It has been said that in this respect British protected persons in British
protectorates or protected states (which are not technically parts of Her
Majesty’s dominions) are in no better position than aliens in foreign
175
countries. This proposition has no adequate basis today. 176 For other
legal purposes, British protected persons have much the same status as
citizens of colonies; 177 they
probably owe allegiance, at least in a pro-
tectorate; they cannot enjoy the same diplomatic protection against the
Crown as citizens of independent States; surely, then, they ought to be
regarded as enjoying a minimal degree of legal protection against arbitrary
action by the Crown? Even if the Crown has unlimited, or potentially
unlimited, legislative jurisdiction in such a territory, 178 it does not follow

173. (1848) 2 Ex. 167. A

British naval officer, with general instructions to suppress
the slave trade, exceeded them by landing in West Africa, destroying a barracoon (shed)
and liberating slaves belonging to a Spaniard his conduct was ratified by the Crown
;

and he was awarded a large gratuity. The Spaniard’s action for trespass failed. Today
no action for trespass to land (as distinct from goods) situate abroad would be enter-
tained by the High Court. This point was relevant to the statement of claim in Nissan's
case.
174. Unless he is an alien who has left family, goods or effects here, evincing an
intention to return, or possibly if he holds a British passport. See p. 424.
175. R. v. Crewe (Earl), ex p . Sekgome [1910] 2 K.B. 576 at 606; decisions in some
Commonwealth jurisdictions; and statements in various textbooks. For the back-
ground, see Morris and Read, note 134, above. An exception is sometimes made for
colonial-type protectorates. See Ex p. Mwenya [1960] 1 Q.B.241.

176. See especially Polack (1963) 26 Mod. L Rev. 138.

.

177. For example, since 1948 they have not been included within the definition of
aliens. See further p. 408.
178. Sobhuza II v. Miller [1926] A.C. 518.

134 The Executive

 that the Crown has an inherent coextensive executive authority to ride
179
roughshod over individual rights.
3. A person a friendly alien (even though he is engaging in un-
who is

friendly conduct) within Her Majesty’s dominions owes local allegiance

and is therefore entitled to protection, so that act of State cannot be
pleaded in respect of a tortious act done to him with the authority of the
180
Crown: Johnstone v. Pedlar .

4.A fortiori act of State is not a defence to an action arising out of such
,

an act done to a British subject within Her Majesty’s dominions: Walker

v.Bairdil 892). 181
5. Nor, so it would seem, is act of State available as a defence to a tort

committed against a British subject outside Her Majesty’s dominions (for

example, Cyprus). 182

6. Possibly, however, propositions 4 and 5 ought to be qualified so that

immunity from the plea of act of State is confined to those British sub-
jects who are citizens of the United Kingdom and Colonics, the residual
category of British subjects without citizenship, and British protected
persons, since citizens of independent Commonwealth countries, who are
British subjects in United Kingdom Jaw only by virtue of their citizenship
of those countries, 183 owe allegiance primarily or solely to their own states
or governments, 184 and are entitled to international protection by them.
7. It is doubtful how far, if at all, aliens owing local allegiance to the
Crown but temporarily absent from the realxn are entitled to immunity
from a plea of act of State. 185
179. In conquered or ceded colonics it will usually have unrest! ictcd prerogative
legislative power, but its executive power to invade the rights of their inhabitants is
limited by the coniines set by law.
180. [1921J 2 A.C. 262 (seizure of money belonging to American arrested for sub-
versive activities in Dublin, then a part of Her Majesty's dominions, not defensible
as act of State). Possibly the decision would now be dillerent it’ the act complained of
were done in an independent Commonwealth country. See the points made at p, 425
below.
181. [1892] A.C. 491 (seizure ol lobster factory in Newfoundland, in purported
implementation of a treaty with France).
182. This defence having been abandoned in Nissan % case (note 872, above). Cyprus,
although within the Commonwealth, is a republic and iheielore not within Her
Majesty’s dominions.
183. British NationalityAct 1948, s. 1(3) as amended.
184. For example, they cannot be convicted of treason in United Kingdom law
unless the conduct in question was treasonable if done by an alien in a foreign country
(ibid., s. 3(1)). See further p. 425.
185. See pp. 423-4 below. Semhle
in any event act of State is pleadable in respect
of seizure of property within the realm belonging to a non-resident alio« hv docs not
owe local allegiance; though cf. note 163 above.

The Crown and the Royal Prerogative 135

 S. All persons, including citizens of the United Kingdom and Colonies,
may become the indirect victims of an act of State by the Crown. Act of
State in this context does mean an act of high policy. Thus, a declaration
of war may frustrate contracts. Upon the acquisition of territory the
Crown does not succeed to the obligations of the predecessor government,
but has a free discretion whether or not to accept them Cook v. Sprigg :

(1 899)
186
;
West Rand Central Gold Mining Co. v. R (1905). 187
9. There is also some authority for the proposition that in certain ill-

defined circumstances direct injury inflicted on of the United

citizens
Kingdom and Colonies may be justified under the plea of act of State.
For example, has been suggested that damage done by the armed forces
it

in the course of a military operation falling short of war to the property of

citizens on foreign soil may be an act of State and therefore non-com-
pensable. 188 (If it were attributed to an exercise of the royal prerogative,
compensation might be payable by the Crown as a matter of obligation,) 189
In this sense the defence of act of State would be a by-product of an ‘act of
policy’. Again, the seizure of British-owned property on behalf of the
Crown may possibly be so connected, causally and in point of time, with
an act of State (for example, a treaty or an annexation) as to be regarded
190
as part of it or necessarily incidental to but it is very doubtful whether
it ;

a court ought ever to accept such an argument today.

The accidents of litigation will doubtless resolve some of these problems,
and throw up new ones, before the century is out.

186. [1899] A.C. 572 (refusal to recognize railway concession granted by former
government to one who was apparently a British subject).
187. [1905] 2 K.B. 391 (refusal to accept responsibility for allegedly wrongful
seizure of gold bars by former South African Republic).
188. There are dicta to this effect in Nissan* s case [1970] A.C. 179 at 221 (Lord Morris),
235 (Lord Wilberforce) and 240 (Lord Pearson) Lord Pearce (at 227) left the point
;

open and only Lord Reid (at 213) rejected this view.
189. Burmah Oil Co. v. Lord Advocate [1965] A.C. 75; but no compensation would
be claimable as of right during a state of war or apprehended war for battle damage or
denial damage, even in Her Majesty's dominions: War Damage Act 1965. In Nissan* s
case Lord Reid (at 213) and Lord Wilberforce (at 236) doubted whether the Burmah
011 rule about the prerogative applied to foreign soil. (The Burmah Oil case arose
within Her Majesty's dominions.) Lord Denning M.R. in the Court of Appeal ([1968]
1 Q.B. 286 at 340) and Lord Pearce ([1970] A.C. at 229) took the broader view of the
applicability of the prerogative.
of State for India v. Kamachee Boye Sahaba (1859)
190. See, for example. Secretary
12 Moo. P.C.C.
22; Salomon v. Secretary of State for India [1906] 1 K.B. 613 (seizures
of property of former rulers upon annexation of their territory; presumably they be-
came British subjects on annexation). In Cook v. Sprigg [1899] A.C. 572, see note
186 above -‘a case of doubtful authority' {per Lord Wilberforce in Nissan* s case
[1970]A.C. at 232) - it is not clear whether the plaintiff's property was in fact seized.

136 The Executive

 Chapter 5
The Privy Council

The Privy Council, like the monarchy, an ancient and dignified insti-
is

tution of government. Unlike the monarchy, it is not an important feature

of the British constitutional system. If the monarchy were to be abolished,

a new personage or institution would have to be endowed with the func-
tions which only a head of State can exercise. The functions now performed
by the Privy Council and its committees could be distributed tomorrow
among other existing organs of government, and few people in the United
Kingdom would notice any difference. Only the Judicial Committee of the
Privy Council, which is in fact a court, almost entirely concerned with the
hearing of appeals from Commonwealth countries overseas, would obvi-
ously need to be replaced by a separate new institution.
The Privy Council today 1 has over 350 members. All are entitled to be
addressed as ‘The Right Honourable . Members must be British sub-
.

jects in United Kingdom law, or citizens of the Republic of Ireland. Ap-

pointments are made by letters patent on the Prime Minister’s advice, and
are for life, though a Privy Councillor (or Counsellor) may be removed on
advice or at his own request. 2 By convention, all Cabinet Ministers must be
sworn as Privy Councillors. 3 It is also conventional or customary to
appoint the Archbishops of Canterbury and York, the Speaker of the
House of Commons, the Lords of Appeal in Ordinary (the Law Lords),
the Master of the Rolls, the Lords Justices of Appeal, the Lord Chief
Justice and the President of the Family Division. Senior non-Cabinet
Ministers, dignitaries and eminent judges from Commonwealth countries

1. The
Scottish Privy Council was merged with the English Privy Council in 1708,
after the Act of Union. There is a separate Privy Council for Northern Ireland but
no new appointment to membership of that body may be made since 18 July 1973:
Northern Ireland Constitution Act 1973, s. 32(3).
2. Sir Edgar Speyer was removed for his pro-German sympathies after the First
World War, and Mr John Profumo and Mr John Stonehouse were removed respectively
in 1963 and 1976 at their own requests.
3. For an amusing account of the swearing ceremony, see R. H. S. Crossman,
Diaries of a Cabinet Minister, vol. 1 (1975), p. 29.

The Privy Council 137

 and a small number of other persons upon whom it is appropriate to
confer a special honour for public service or political eminence (for
4
example, leadership of the Liberal Party) may also be appointed.
Upon admission, a new Privy Councillor must swear an oath or make
an affirmation not to divulge any matter disclosed to him confidentially
in the Council. The general understanding used to be that the secrecy of
Cabinet proceedings is preserved by the undertaking thus given; but this
view cannot be sustained either by a literal interpretation of the oath (be-
cause the Cabinet is neither the Privy Council nor a committee of the Privy
Council) or after the decision in Attorney-General v. Jonathan Cape Ltd
5
(the Crossman Diaries case).
Meetings of the Privy Council are held in the presence of the Queen
(or Counsellors of State if she is absent from the realm or indisposed),

normally at Buckingham Palace. The business transacted is purely formal,

approving and recording decisions already taken elsewhere. The Lord
President of the Council, a senior Minister (who need not be a peer), is
responsible for the summoning of members and the preparation of the
listof business; usually only three or four members are called, and they
will be Ministers concerned with the matters to be transacted; meetings
of the Council are very brief indeed, the members remain standing. On
;

rare ceremonial occasions a larger meeting, including persons other than

Ministers, is convened - for example, to proclaim a new monarch, or to
hear the monarch give consent to a royal marriage.
The dissolution, summoning and prorogation6 of Parliament are effected
by royal proclamations in Council; so are the declaration and termination
of a state of war, and the declaration of a statutory state of emergency.
Projets de loi (bills) passed by the States of Jersey and Guernsey are
assented to by Order in Council; and it is by Order in Council that the
Royal Courts of the islands are directed to register Acts of the United
Kingdom Parliament having effect in the islands.
Some Orders in Council are of a judicial character, formally promul-
gating the report (or judgment) of the Judicial Committee. 7 The great
majority are legislative Orders in Council. Apart from those few Orders
in Council which are still made under prerogative powers (for example,
for altering the constitutions of a now diminishing group of colonies, 8
4. The current annual volume of Whitaker's Almanack gives a list of the member-
ship. 1
1

5. [1976] Q.B. 752, and below p.169.

6. See ch. 10.
7. The between a judicial and a legislative Order in Council was clearly
distinction
emphasized in lbralebbe v. J?. [1964] A.C. 900. See pp. 46-7.
- B. For example, colonies originally acquired by conquest or cession, such as Gib-
raltar and the Seychelles; the latter became independent in 1976.

r
;138 The Executive
 for altering rates of pensions for the armed services, for dealing with
recruitment to the civil service, coinage, or the delimitation of territorial
waters), legislative Orders in Council are made in pursuance of powers
9

delegated to Her Majesty in Council by statute. These have exactly the

same status as regulations made by individual Ministers under delegated
legislativepowers; they fall within the definition of ‘statutory instru-
ments’, are numbered and published in the annual volumes of Statutory
10

Instruments, and differ from departmental regulations only in their formal

source. Unless they are of exceptional importance (in which case parlia-
mentary draftsmen may be enlisted) they are drafted by the legal advisers
to the Department with whose business they deal. The reasons for giving
Her Majesty power to make Orders in Council on certain matters instead
of vesting a Minister with power to make regulations are partly traditional
and partly psychological. It is more dignified and impressive for an
independence constitution, or an instrument giving effect to an extradition
treaty or creating new parliamentary constituencies or altering electoral
boundaries, to be made by Her Majesty in Council. Or so it seems to some
people; and appearance is occasionally more important than reality, even
if hardly anyone is misled by the ceremonial trappings. The draft Orders
are not discussed at the meeting of the Council ; the Lord President reads
out their titles, 11 the Queen (who has been fully informed in advance of the
business to be transacted) approves them orally, and they are then auth-
enticated by the signature of the Clerk of the Council and the affixing of
the seal of the Council.

n
The oldest of the supervisory committees - it was established in 1660-
was the Committee for Trade and Plantations. This was to beget two
separate departments of State, the Board of Trade and the Colonial
Office. Several of the committees set up in the nineteenth century (for
example, for education, agriculture and health) ended by parting with
their functions to public boards, autonomous, semi-autonomous or under
the aegis of a Minister, which subsequently became fully-fledged govern-
ment Departments headed by a Minister. A few years ago there were still

9. Prerogative Orders in Council of a legislative character are published as an

Appendix to the annual volumes of Statutory Instruments. They are not, of course,
statutory instruments.
10. Statutory Instruments Act 1946, s. 1, and the regulations made thereunder.
'
See ch. 15.
11. The titles of Orders in Council have been abbreviated. Instead of a Fiji (Con-

stitution) Order in Council wc had simply a Ffji (Constitution) Order 1966.

The Privy Council 139

 Privy Council committees on scientific and industrial research, agricultural
research, medical research, atomic energy and nature conservancy; these
functions, coordinated by the Lord President of the Council, have been
transferred to Departments old and new.
The
Privy Council today has a miscellany of standing committees, none
of recent origin, and most resting on a statutory basis - the Universities
Committee, reporting on petitions concerning Statutes of the Universities
of Oxford and Cambridge and their colleges; a somewhat similar Scot-
tish Universities Committee; a Baronetage Committee to report on claims
to baronetcies; the Political Honours Scrutiny Committee (a commit-
tee of three persons, not being members of the Government, reporting
in the first instance to the Prime Minister on the suitability of persons to
be recommended by him for the award of titles and dignities for political
12
services ); and committees on the Channel Islands and the Isle of Man,
to which bills passed locally are referred for report. The Honours Com-
mittee (composed of elder statesmen, one from each of the main parties)
and the Universities Committees are fairly active, non-political, advisory
bodies. The Committees on the Channel Islands and the Isle of Man are
composed of the Lord President, the Home Secretary and other Ministers;
they are political organs of the United Kingdom Government, but seldom
do they meet and deliberate as committees. There are ad hoc committees
- for example, to consider applications by other institutions for charters
and Statutes; and committees of the Council, or consisting of Privy
Councillors, to consider special problems appropriate for investigation by
an eminent non-partisan body, for instance the interception of com-
munications by executive order, the use of questionable interrogation
techniques by security forces or the recruitment in this country of mer-
cenaries to fight abroad. And then there is the Judicial Committee. Hence
the Privy Council is not entirely superfluous. Although all its non-judicial
functions could be transferred to the Cabinet or departments of State, and
itscommittees could be detached as autonomous statutory bodies or as
advisory bodies to Departments, such a redistribution would not in every
instance be as convenient as the present arrangements, and in some cases
the retention of ancient forms is of political value. But the Lord President
of the Council has almost become a Minister without portfolio; so light
are his ‘departmental* duties; in recent years he has been made Leader of

12. For the origin of this committee, see Jennings, Cabinet Government (3rd edn),
pp. 469-71. If the committee reports adversely and the Prime Minister nevertheless
proceeds with his recommendation, the Queen is to be informed. Following a mis-
understanding about Mr Wilson's resignation honours list the Committee briefly hit
the headlines: see The Sunday Times, 2 May, The Times and The Guardian 3 May 1976.

140 The Executive

the House of Commons, the Minister in charge of government business in
the House. 13

in
The Judicial Committee of the Privy Council 14 can be mentioned at this
point. After the abolition of the conciliar courts, the Council v.-s still

able to entertain appeals from the overseas dominions of the Crown.

With the expansion of the colonial empire, it became essential to make
adequate provision for the determination of appeals, and in 1833 Par-
liament constituted a Judicial Committee of the Privy Council; its com-
position and jurisdiction have been modified many times since.
In 1977 the Judicial Committee consisted of the Lord President (who
never sits), persons who hold or have held high judicial office in the
United Kingdom and are Privy Councillors, and leading members of the
Judiciary from certain Commonwealth countries (notably Australia and
New Zealand) from which appeals still lie to the Privy Council. The
quorum of the Judicial Committee is three; normally five members sit to
hear an appeal; 15 more often than not, they are the Law Lords. The
JudicialCommittee is sometimes referred to as the' Board; its reports are
in theform of advice and are promulgated, as we have seen, by Order in
Council. It is not strictly bound by its own decisions. Before 1966 no
dissenting opinion could be delivered, because advice to the Crown should
not be divided, but this anachronistic rule has now been abandoned. 16
The Judicial Committee’s jurisdiction is regulated by statute, sub-
ordinate legislative instruments, and local constitutions and legislation. It
hears appeals from the superior courts of the Channel Islands, the Isle of
Man, colonies, protectorates, associated states, and such independent
Commonwealth countries as have retained the appeal from their own
courts. In 1975 ninety-four appeals were pending or had been received
from courts overseas. Of these cases, twelve came from Malaysia, eight
from Jamaica and five from Australia; the sources of the others were far-
flung. Appeals may lie as of right, with leave of the court below, or by
special leave of the Judicial Committee. The power to grant special leave
to appeal is a prerogative power placed on a statutory basis, and cannot be

13. But in 1974 he was made responsible for the Government’s devolution policy,
with a Devolution Unit in the Cabinet Office and two junior Ministers to help him.
14. Sir Kenneth Roberts- Wray, Commonwealth and Colonial Law, pp. 433-63; Beth,
[1975] Public Law 219.
15. In the Australian Banks Nationalisation case ( Commonwealth of Australia v.
Bank of N.S.W [1950] A.C. 235), a Board of seven members was convened. Two
.

members died during the hearing, which was of unprecedented length.

16. Judicial Committee (Dissenting Opinions) Order 1966 (S.I. 1966, No. 1100)*

The Privy Council 141

 abrogated by a colony. 17 Appeals in criminal matters lie only by special
leave, save in matters concerning the guarantees of fundamental rights
and freedoms embodied in constitutions since 1959; generally the appeal
will lie asof right in the latter class of case. Petitions for special leave to
appeal are granted sparingly; and the Judicial Committee declines to act
as a general Court of Criminal Appeal.
By virtue of the Statute of Westminster 1931, and subsequent inde-
pendence Acts, independent Commonwealth countries have acquired
power (subject to any restriction imposed by their own constitutions) to
terminate the appeal, and a number have done so. Among Common-
wealth countries which achieved independence before 1950, Canada,
India and now Ceylon (Sri Lanka) 18 have abolished all appeals; the Com-
monwealth of Australia has in effect excluded appeals in federal consti-
tutional cases; 19 appeals on a wide range of matters from New
still lie

Zealand but are infrequent. If a Commonwealth country which becomes a

republic or comes under a separate monarchy on or after the attainment of
independence still wishes to retain the appeal, this may be done by one of
two methods: by providing either (i) that appeals shall be referred by the
local head of State to the Judicial Committee, which will submit its report
to him (as in Malaysia), or (ii) that appeal shall lie not to ‘Her Majesty in
Council’ - the form used in the constitutions of those countries of which
the Queen is still head of State - but simply to the ‘Judicial Committee’.
Under the constitutions of some Commonwealth countries, a superior
judge cannot be removed except for inability or misbehaviour established
to the satisfaction of the Judicial Committee following an adverse report
by a local judicial tribunal of inquiry.
The Judicial Committee of the Privy Council is essentially a Common-
wealth court, but it also has a place in the legal system of the United
Kingdom. Here its jurisdiction is exclusively statutory and, like the powers
of the Privy Council itself, comprises a mixed assortment.

1. It hears appeals from the decisions of certain professional disciplinary

bodies, medical, dental, optical and in respect of professions ancillary to

17. Southern Rhodesia remained a colony despite the unilateral declaration of

independence (UDI) by its government in November 1965, and the purported abolition
of the appeal to the Privy Council by the Smith Constitution was therefore ineffective
in law; see Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645. The Appellate Division
of the High Court of Southern Rhodesia refused to follow this Privy Council decision
and accepted the Smith Constitution as binding: JR. v. Ndhlovu 1968 (4) S.A. 515.
18. Shortly before the adoption of a republican constitution in 1972.
19. Privy Council (Limitation of Appeals) Act 1968 (No. 30). Total abrogation of
appeals would require a constitutional amendment. In matters arising under the laws
of the Australian states, appeals still lie direct from the State Supreme Courts to the
Privy Council.

142 The Executive

 b

medicine. It also has a limited appellate jurisdiction from

higher ecclesi.

astical courts, and in wartime it hears appeals from the Prize Court. In

1975 it heard three appeals in professional disciplinary cases and two

ecclesiastical appeals.

2. Under section 7 of the House of Common^ Disqualification Act 1975,

a member of the public may apply to the Judicial Committee for a declar-
ation that a member of the House is subject to a statutory disqualification
20
under that Act. This replaces the old common informer procedure.
3. The Crown may, under section 4 of the
Judicial Committee Act 1833,

refer any matter to it for an advisory opinion. Unlike

its appellate deter-

minations, which are advisory only in form, such opinions are truly

advisory, though they will almost invariably be treated as authoritative,

It would be possible so to refer a matter that was not characteristically

justiciable, though in practice its advice has been sought only on legal
questions.
21
The was made in 1957, at the request of
last special reference

the House of Commons and upon the initiative of the Committee of

Privileges, in order to obtain an authoritative interpretation of the effect

of an obscure eighteenth-century statute on the article of the Bill of Rights
which guarantees freedom of speech and proceedings in Parliament.
22

20. See further ch. 11.

21. See Roberts- Wray, op. cit., p. 449, ior a synopsis of the matters specially re-

ferred. In 1966 and again 1968 the British Government in its negotiations with Mr
in
Jan Smith about the conditions under which it might grant independence to Rhodesia,
proposed that there should be specially entrenched constitutional provisions for an
appeal to lie to the Judicial Committee in respect of unfairly discriminatory constitu
tional amendments made in Rhodesia. Sec Cmnd 3159 (1966), p. 10 (the Tiger pro-
posals); Cmnd 3793 (1968), p. 9 (the Fearless proposals). In the past, mixed questions
of law and policy were occasionally referred for an advisory opinion to a mixed ad hoc
committee of the Privy Council, composed of judicial and other members of the
Council: see, for example. Re States oj Jersey (1853) 9 Moo. P.C.C. 185.
22. Re Parliamentary Privilege Act 1770 [1958] A.C. 331. This was one stage in the
controversy in the Strauss case; sec pp. 306-7 below. Appeals lie from the Court of
Appeal in Northern Ireland to the House of Lords.

The Privy Council 143

Chapter 6
Cabinet and Prime Minister

Background

Charles II preferred to consult a small group of confidential advisers in-

stead of thefull Privy Council on matters of State, and the Privy Council

never regained the status it had enjoyed from the reigns of Henry VIII to
Charles I. From this inchoate group of advisers there emerged the modem
Cabinet. Evolution of Cabinet government was facilitated by the fact that
two political parties or factions, the Whigs and the Tories, had formed in
the latter years of Charles IPs reign; the Whigs had sought to exclude
Charles’s Roman Catholic brother, James, Duke of York, from the line of
succession, and the Tories, defenders of the Duke, afterwards James II,
were not men upon whom it was prudent for William of Orange to rely
when he accepted the invitation to the throne. Moreover, there was a Whig
majority in Parliament after 1688; the King needed to carry Parliament
with him, and for this purpose it was necessary to give ministerial posts to
Whigs. The Lords of the Committee, the Cabinet, the Junto - the designa-
tions varied - were nevertheless viewed with suspicion by those Privy
Councillors who were excluded from the inner conclave and also by parlia-
mentarians who objected to the growth of royal influence in the Commons.
The Act of Settlement purported not only to restore the authority of the
Privy Council but also to exclude from membership of the House of
Commons ‘any person who has an office or place of profit under the King,
or receives a pension from the Crown’. These provisions, however, were
repealed before they took effect. If they had survived, English constitu-
tional history might have been a different tale.
We shall not attempt to give a detailed summary of eighteenth-century
developments. 1 The principle that the Cabinet was to be a politically
homogeneous body, presided over and led by a Prime Minister, who bad
full authority over the appointment and removal of his colleagues and

who owed his position not to the favour of the Crown but to the support
of a majority in the House of Commons, developed fitfully rather than

1. There is a good short account, with references to further reading, in John P.

Mackintosh, The British Cabinet (3rd edn), ch. 2.

144 The Executive

 gradually. One could was securely established till the
hardly say that it

accession of Sir Robert Peel to office in 1841and this was after the broad
;

extension of the franchise and the reform of the distribution of seats and
constituencies brought about by the Representation of the People Act 1 832.
easy to be beguiled into seizing upon a striking
In a confused story it is

event and magnifying its importance. The abstention of George 1, a

Hanoverian who did not speak English, from attendance at Cabinet
meetings after 171 2 may seem to have been the crucial factor in shifting
the balance of power away from the Crown and towards the Cabinet,
but even this is by no means clear. The absence of the King possibly made
the Cabinet itself less important and some individual Ministers more
important. Whatreasonably clear is that Sir Robert Walpole, who
is

normally presided in Cabinet meetings from 1721 to 1742, can post-

humously lay claim to having been the first Prime Minister, albeit the
King’s Prime Minister: he was the King’s principal and trusted adviser
and a supreme manipulator of the House of Commons, using patronage
and bribery in the Whig and royal interests, and he was able to procure
the removal of some of his discordant or uncongenial colleagues. Yet
there remained in his time two Cabinets, an inner group and an outer or
nominal Cabinet (which included household officers, non-political officers
of State and the Archbishop of Canterbury, and which did not fade away
till George Ill’s reign). The influence of the King in matters of government

was still potentially strong, and included the determination of what matters
s
should be referred to the Cabinet and full power to reject ministerial
advice. Walpole did not have a free hand in his selection of colleagues; as a
collective entity even the Inner Cabinet still lacked authority and cohesion;
when Walpole finally fell from office, most of his fellow-Ministers stayed
doggedly at their posts. The very existence of the office of Prime Minister
as a regular feature of the constitution was not recognized in the middle of
the eighteenth century though by then the Cabinet had at least established
,

its respectability. Not till the formation of the first Ministry headed by

William Pitt the Younger in 1783 did Britain have an undoubtedly dom-
inant Prime Minister, dominant not only over his colleagues and the House
of Commons but also, to a substantial extent, over the will of the King;
and dominance was not inevitable but was explicable by reason of
Pitt’s
his personal talents, George Hi’s loss of prestige because of his partial

2. George I would converse with his Ministers in French and Latin; his retirement
from Cabinet meetings may have been due not so much to problems of communication
as to his lack of grasp of English politics and his loss of interest in Cabinet proceedings.
He continued to see Ministers privately, but tended to lean on German advisers. His
successor, George II, was closer to Walpole. George III was very much the King of
England in the early years of his reign.

Cabinet and Prime Minister 145

failure (dramatized by Britain’s defeat in the American War of Inde-
pendence, followed by the fall of his instrument, Lord North) to reassert
royal authority over the main direction of national policy, and the onset
of the King’s first spell of mental illness in 1788. In the years between
Walpole and Pitt there had been phases of mixed Ministries, sporadic and
often decisive royal intervention and amorphous constitutional fluidity.
And the King forced Pitt himself to resign. But the Cabinet had grown in
stature as an autonomous institution under Pitt as royal influence had
declined, and those matters discussed and decided by the Cabinet were
seldom referred to it by the King. Although it was not until after 1832 that
the effective choice of a Ministry and Ministers passed from the monarch’s
hands, the central role in the formation as well as the execution of policy
had moved irrevocably into the hands of the King’s Ministers. George
Ill’s incapacity, the unpopularity of his son, first as Prince Regentand
then as George IV (1820-30), and the mediocre ability of William IV
(1830-37), ensured that the trend towards the eclipse of the King as the
effective head of the Executive would be maintained. For practical purposes
the Prime Minister and the Cabinet became the principal organs of execu-
tive government, dependent no longer on royal favour but on the confidence
of a majority in the House of Commons, which rested on a more repre-
sentative basis after 1832.

Executive power: a conventional approach

No series of terse comments on existing practice can be free from dog-

matic assertion, or be based on sufficient or reliable information on
matters which are still to a large extent confidential; nor can a brief
description pay proper regard to the work of constitutional and political
historians or students of politics and political sociology. Recent inves-
tigations into the processes by which major policy decisions have been
made, the nature and influence of pressure groups, the organization and
behaviour of the two main political parties in and out of Parliament, the
selection of parliamentary candidates by constituency parties, the impact
of the media of information on the vicissitudes of public opinion, the
realities behind voting behaviour, and so on, have contributed much to
an understanding of how the British constitutional and political system
works in practice. This book is concerned less with evaluation than with
rules and institutions.
The rules about the principal institutions of executive government are
not, of course, mainly rules of strict law. The monarchy and the Privy
Council are encrusted with rules of strict law in abundance; but they are
not principal institutions of executive government. The Cabinet and the

146 The Executive

 Prime Minister, on the other hand, are hardly recognized in the statute
book and they are almost invisible in the law reports. The Prime Minister
is the keystone of the Cabinet arch, a sun around which planets revolve,

an elected monarch, a President, or what you will; yet he was not men-
3
tioned in an Act of Parliament till 1917, and the main statutes relating
4
to his office are those providing for his salary and pension. His powers
and duties are determined almost exclusively by convention and usage.
The Cabinet has been virtually ostracized by the parliamentary draftsman.
It appeared in 1937 (also in the context of ministerial salaries) but has
5
made little further progress towards statutory recognition. Its com-
position, of selection, powers and procedures have to be elicited
mode
from announcements, inference, breaches of confidence, and
political
optimistic speculation. The strict law of the constitution tells us as
much and as little about political parties and the Leader of the Opposi-
6
tion.
It is a number of conventional rules about
nevertheless possible to list

the Prime Minister and the Cabinet. The authenticity of some of the
rules is dubious, since their binding force is sometimes questionable and
they are apt to change with a disconcerting frequency; moreover attempts
to ascertain them are bedevilled by a paucity of reliable up-to-date infor-
mation. Again, it is possible to place a variety of reasonable interpretations
on the and his Cabinet at any
relationship between the Prime Minister
given moment
of time; and students of politics have of late disagreed with
one another sharply on the relative standing of the Prime Minister and
his Cabinet. But the most significant fact is that nearly all commentators
regard the Cabinet as being in some degree subordinate to the Prime

Chequers Estate Act 1917, providing him with an olticial residence.

3.
4. Now
Ministerial and other Salaries Act 1975. His salary is £20,000 a year -he also
receives £3000 as a MP - and his pension (sec also Parliamentary and other Pensions
Act 1972, s. 26) is £7500 a year. Of his salary, the sum of £5000 is allowed as noa-
taxable expenses. See further note 5. There are one or two other random statutory
references to the Prime Minister: sec, for example, Chevcning Estate Act 1959, Sched-
ule; Parliamentary Commissioner Act 1967, s. 8(4) (below); Police Act 1976, s. 1.
5. Under the First Schedule to the Ministerial and other Salaries Act 1975 the

salaries of specified Ministers are fixed according as to whether they arc or are not
members of the Cabinet. Cabinet papers and proceedings (certified as such by the
Secretary of the Cabinet with the approval of the Prime Minister) are not to be divulged
to the Parliamentary Commissioner for Administration (the ‘Ombudsman*) in the
course of his investigations: Parliamentary Commissioner Act 1967, s. 8(4). The
Cabinet Office lies outside the Commissioner's field of inquiry: ibid., Sched. 2, note 6.
6. See Ministerial and other Salaries Act 1975, s. 2(1) (definition of the meaning of

Leader of the Opposition by reference to the largest opposition party); Companies

Act 1967, s. 19 (directors' reports to disclose contributions
by companies to political
parties). See also John
Rees [1970] Ch. 345 (natural justice to be observed by party’s
v.
national executive before disaffiliating or suspending activities of a constituent

Cabinet and Prime Minister 147

Minister. Hardly will make out a case for the proposition
anyone today
that the Prime Minister merely primus inter pares , the first among
is

equals, except in the formal sense that all are servants of the Crown. The
central feature of recent controversies is the question how far it is justifiable
to speak of Prime Ministerial government rather than Cabinet govern-
ment. 7 For two centuries the Cabinet has been regarded as the primary
executive organ of government, discussing and deciding the main issues of
national policy and coordinating the work of the Departments. Is this
still true?
The principal modern conventions concerning the Prime Minister and
the Cabinet are:

1. The Prime Minister is invariably designated First Lord of the Treasury.

The legislation providing for his salary and pension presupposes that he
will fulfil this dual role.

2. Although his Treasury duties may be nominal - the Minister effectively

in charge of the Treasury is the Chancellor of the Exchequer - it seems to
follow that the Prime Minister must be (or must become immediately
after his appointment) a member of the House of Commons, if only
because the House of Lords no longer has any control over finance. There
are other, more obvious reasons why he must be in the Commons: the
unrepresentative character of the Lords, its diminished status in the con-
stitution since 1911, the role of the House of Commons as the political
cockpit and the fact that a Government has to retain a majority in the
Commons to remain in office but can flout a hostile House of Lords.
Apart from Lord Home, who swiftly transmuted himself into a member of

7. Among writings on this subject in the last decade, the prime ministerial thesis
has been argued with particular force by R. H. S. Crossman, Introduction to Walter
Bagehot, The English Constitution (1963 edn); John P. Mackintosh in The British
Cabinet (though in a more guarded form in the 3rd edn); and Humphry Berkeley,
The Power of the Prime Minister. It has been opposed no less vigorously by Herbert
Morrison, Government and Parliament (3rd edn); D. N. Chester in (1962) 15 Parlia-
mentary Affairs 519; George W. Jones in (1965) Parliamentary Affairs 167 (reprinted
in Policy Making in Britain (ed. Richard Rose), p. 307); and Patrick Gordon Walker,
The Cabinet (revised edn, 1972). See also Ronald Butt, The Power of Parliament
(2nd edn); Ian Gilmour, The Body Politic ; Sir Ivor Jennings, Cabinet Government
(3rd edn). For a particularly well-argued appraisal, see A. H. Brown ‘Prime Ministerial
power’ [1968] Public Law 28, 96. See also Anthony King (ed.). The British Prime
Minister, Gordon Walker’s evaluation is particularly important, the author having had
considerable experience as a Cabinet Minister. Crossman’s essay was written before he
became a Minister, but he has substantially reiterated his views in Inside View (1972),
.which he again modified somewhat, after Cabinet experience, in Diaries of a Cabinet

Minister, vols. 1 and 2. A former Prime Minister has challenged the prime mini-
sterial thesis: Wilson, The Government of Britain (1976).

148 The Executive

the Commons,8 no Prime Minister has been a member of the Lords since
1902.

3. As Lord of the Treasury he had responsibility for civil service

First
affairsand his approval was required for proposals for the appointment
of permanent heads of departments. In 1968 a new Civil Service Depart-
ment was constituted, but the Prime Minister also became the Minister
for the Civil Service, retaining his main responsibilities. The Head of the
Home Civil Service is the Permanent Secretary to the Civil Service Depart-
ment and is directly responsible to the Prime Minister.
4. The general rule, is that in appointing a Prime Minister, the Queen
should commission that person who appears best able to command the
support of a stable majority in the House of Commons.

A change of Prime Minister may be necessary because of the resig-

nation, death or dismissal of the incumbent. The last possibility, dismissal,
would only in highly exceptional circumstances and, one would
arise
9
suppose, in a near-revolutionary situation; in such a context the Queen
would have to find somebody to form an emergency Government, perhaps
without a majority in the House but prepared to advise a dissolution of
Parliament at the earliest practicable moment. All vacancies in the office
since Victoria came to the throne have arisen through resignation or
death/Resi gnat ion may occur because the Government has been defeated
at a General Election (as in 1945, 1951, 1964, 1970 and February 1974) or'
has collapsed through internal dissension (as i n 1931 ) or has been defeated!
on a matter of confidence in the House of Commons (as in 1895 10 and
1923 u ). In such cases it is the duty of the Government as a whole to resign
(unless, in the event of a defeat in the House, the Prime Minister elects to
advise a dissolution 12 ) and of the Queen to send for the Leader of the
Opposition or, when a Government resigns as soon as the results of a
General Election are known and Parliament still stands dissolved, the

8. See p. 59. See also pp. 55-7 and 150-5 for further reasons why the Prime Minister
must be in the Commons.
See pp. 101-2.
9.
10. When Lord Rosebery’s Government was defeated on the ‘cordite vote*.
11. When Baldwin’s Conservative Government was defeated on an amendment to
the address in reply to the King’s speech. See also the 1924 case (below).
12. Ramsay MacDonald so advised in 1924, and George V accepted his advice
though he was not obliged to do so. No Government has been defeated in the House
on a clear issue of confidence since that time. The Wilson Government was defeated
in the House of Commons on 10 March 1976 by 28 votes following a debate on its
planned public expenditure cuts: thirty-seven Labour MPs abstained and the Opposi-
tion parties voted against the Government. But a vote of confidence was won the
following day by 297 votes to 280. The Callaghan Government on 10 November 1976
suffered defeats on the Dock Work Regulation Bill through Labour abstentions.

Cabinet and Prime Minister 149

 person who was Leader of the Opposition in the House of Commons
,
before the dissolution;^ he will normally accept office as Prime Minister,
but in an exceptional situation may prefer to advise (as Baldwin advised in
14
1931) that a coalition Government under another person be formed. The
resignation of a Prime Minister may take place for other reasons - because
of ill health or old age, or because he feels or is persuaded to feel that he
has become a liability to his party or an obstacle to the formation of a
coalition in wartime. In these situations, which have often arisen in the last
fifty years -in 1923 (Bonar Law), 1935 (MacDonald), 1937 (Baldwin), 1940
(Neville Chamberlain), 1955 (Churchill), 1957 (Eden) and 1963 (Mac-
millan) - the party in office still House and the
retains a majority in the
Prime Minister’s resignation is personal, almost as if he had died in office;
the Ministers place their offices at his successor’s disposal, but the Govern-
ment as a whole does not vacate office. His successor may decide to make
few changes, and those Ministers who continue in .their posts do not have
to be reappointed. But how is his successor chosen ? If Labour is in office,
the Queen should wait until the Parliamentary Labour Party has chosen
its new leader, and then send for him. This happened in 1976 when Mr

Wilson announced that he would resign as soon as the Parliamentary

Labour Party had elected a new leader. Mr Callaghan was elected three
weeks after that announcement; Mr Wilson resigned and the Queen ap-
pointed the new Leader of the Labour Party as Prime Minister. 15 With a
change of Conservative Prime Minister, the monarch had a personal dis-
cretion till February 1965, when the Conservative and Unionist Party
adopted a new procedure for electing a party leader by ballot among Con-
servative M.P.s. 16 It can, therefore, be assumed that the Queen will not now
have to exercise personal discretion on a change of Conservative Prime

13. Assuming, of course, that his party has won a majority at the General Election
and he has himself been re-elected in a constituency. When an Opposition party has
won an overall majority in the House at the General Election, it is conventional for
the Government to resign before the new Parliament meets.
14. In this instance, MacDonald, the outgoing Prime Minister, who cut himself
adrift of the majority of his Labour colleagues. In a multi-party situation, where the
Government has lost its majority but the Opposition cannot command one, the Leader
of the Opposition may alternatively agree to form a minority Government. This situa-
tion arose after the February 1974 General Election. See note 17.
15. This totally unexpected resignation provided the first example perhaps since
Baldwin’s retirement in 1937 of a Prime Minister deciding in his own time when to go
rather than being forced to resign for any of the reasons given in the text.
16. In July 1965 Mr Edward
Heath was elected leader by this new procedure in
Douglas-Home (formerly Lord Home) who resigned the leader-
succession to Sir Alec
ship; the,, party was then in opposition. The Conservatives’ rules have since been
amended to require annual re-election: Mr Heath so offered himself in 1975 and lost
to Mrs Thatcher. Leaders of the Labour Party have always been elected annually.

150 The Executive

 Minister, as she had to exercise a discretion in 1955, 1957 and 1963. In
1955, however, Sir Anthony Eden (later the Earl of Avon) was the obvious
successor to Churchill. On the resignations of Eden in 1957 and Macmillan
in 1963 the successor was not obvious. In 1957 she consulted Sir Winston
Churchill and Lord Salisbury, two elder statesmen of the party; neither of
them was any longer a candidate for the office; both recommended Harold
Macmillan in preference to R. A. Butler, the alternative choice, and she
commissioned Macmillan to form a Government. In 1963 the position
was more difficult. Macmillan, having decided to resign on grounds of
health, arranged for soundings to be taken among the Cabinet, the
Parliamentary Party, the Conservative peers and the constituency parties;
the collective weight of opinion appeared to favour Lord Home, and
Macmillan advised the Queen accordingly. Although the monarch was'
not obliged to seek or follow the outgoing Prime Minister’s advice, she:
could hardly have acted otherwise in those circumstances. The procedure^
and its outcome gave rise to some dissatisfaction within the party, which
decided to alter its practice soon afterwards.
Hence the Queen is unlikely to have to exercise such a discretion again
unless no party has an overall majority in the House, or the formation of
a coalition is advised, or a coalition, having been formed, disintegrates.
In such situations her duty will be to take such counsel as is proper and
expedient to assist her in deciding who is the most appropriate person to
invite toform a Government with a reasonable prospect of maintaining
itself in office.That person will normally, but not invariably, be the
leader of the largest party in the House of Commons. 17 In any event, the
procedures now adopted by all the major parties (including the Liberals)
for electing their own leaders seem to carry a necessary implication that
the Prime Minister, when appointed, shall be a member of, or shall be
about to occupy his seat 18 in, the House of Commons.

17. As he was after the first 1974 General Election. Mr Heath (who had lost the
Election and had failed to negotiate a coalition with the Liberals) was succeeded as
Prime Minister by Mr Wilson, who led the largest party, there being no majority
party in the new House. Hence the Queen’s part may in such circumstances be largely
formal. For a fuller and authoritative discussion of the conventions, prior to the change
in Conservative Party practice, see Jennings, Cabinet Government (3rd edn), ch. 2,
Mackintosh’s The British Cabinet (3rd edn) is a highly informative work on political
practice and relationships but is not primarily concerned with the identification of
conventions.
From 1931 to 1935 MacDonald held office as Prime Minister of the ‘National’
Government although he was He was dependent
the leader of a small minority party.
on the favour of the Conservatives, the majority party and the dominant partner in
the coalition; his personal position was conspicuously weak.
18. Where a change of Prime Minister is necessary al ter an election while Parliament
stands dissolved.

Cabinet and Prime Ministor 161-

5. The Prime Minister presents a list of his proposed ministerial col-
leagues for the Queen’s approval. She may make observations, suggestions
and objections, but the Prime Minister is entitled to insist on his own
choice. Junior Ministers are appointed by the Prime Minister without
prior reference to the Queen.

6. The Prime Minister decides which Ministers are to be

members of the
Cabinet. His selection will be determined mainly by personal inclination
and political expediency. By convention or custom, certain Ministers - the
Chancellor of the Exchequer, the Secretary of State for Foreign and
Commonwealth Affairs, the Home Secretary, the Lord Chancellor, the
Secretary of State for Scotland, the Secretary of State for Defence, and
that Minister whom the Prime Minister designates as Leader of the House
of Commons - must always be in a peacetime Cabinet; and it would be
odd if Ministers in charge of certain other main Departments (for example,
education, social services, agriculture) were to be excluded. All Cabinet
Ministers must be sworn as members of the Privy Council.

7. In assigning Ministers to Departments the Prime Minister must have

regard to certain well-established conventions. All Ministers 19 must be
or become members of one or other House of Parliament; if a Minister
is not a member of either House at the time of his appointment, he must'*
obtain a seat at the earliest opportunity or resign. Hence although it was
proper to appoint Mr Patrick Gordon Walker as Foreign Secretary in
1964 in spite of his defeat in his constituency at the General Election, it
was necessary for him to resign from office when he failed to win a seat
at a by-election shortly afterwards. Each Department must have a minis-
terial spokesman in the House of Commons; no corresponding rule applies
to the Lords. The Chancellor of the Exchequer must be a member of the
House of Commons.
8. The Prime Minister may require a Minister to resign at any time and
for any reason he thinks fit. If the Minister refuses to comply, the Prime
Minister may in the last resort advise the Queen to dismiss him. 20 In July
1962, Mr Macmillan in effect dismissed seven of his Cabinet colleagues,
including the Chancellor of the Exchequer and the Lord Chancellor, in a
drastic purge. Whether there are any circumstances in which the Queen

19. Except the Lord Advocate and the Solicitor-General for Scotland, one or both
of whom have not infrequently been outside Parliament under Labour Governments.
20. In 1975 Mr Heffer, Minister of State for Industry, broke the guidelines agreed
by the Cabinet for the suspension of collective responsibility during the EEC referen-
dum campaign (see p. 60, note 77). The Prime Minister immediately wrote to Mr
Heffer to tell him that he no longer held office - an exit remarkable for not being wrap-
ped up as a resignation.

152 The Executive

 could properly refuse a Prime Minister’s advice to dismiss his colleagues is

debatable. 21

9. The Prime Minister may decide to advise a dissolution without prior

reference to the Cabinet. In some situations, as we have already noted, 22
it would be constitutionally proper for the Queen to. refuse such a request,
absolutely, temporarily or conditionally, and one of those situations may
be the case of a Prime Minister, placed a minority in his own Cabinet,
in
seeking to appeal to the electorate against his colleagues instead of follow-
ing the more appropriate course of resigning. Nevertheless, the wide-
spread assumption that it is within the Prime Minister’s sole authority to
fix the date of the next General Election enhances his persona! in
relation to his ministerial colleagues and his party, and in the country as a
whole.
10. When Parliament is dissolved the Government continues in office; it
vacates office only if the election results show that it has lost its majority
in the House , in which case it must resign.

11. The Prime Minister has substantial control over the organization as
well as the personnel of central government. Not only does he choose,
switch, promote, demote and discard his colleagues; he places them in an
informal order of seniority; 23 he can take the initiative in creating a new
Department or ministerial office, winding up a Department, and trans-
ferring functions from one Minister to another (though in some instances
the change can only be effected by legislation) he -can decide to create a
;

new committee of the Cabinet, prescribe its terms of reference and give it
decision-making powers; he can determine when the Cabinet shall meet;
and in the last resort he can decide what shall or shall not be discussed at
Cabinet meetings. He can thus control the allocation of functions between
Cabinet, Cabinet committees and individual Departments. He can also
decide which non-Cabinet Ministers shall be appointed to membership of

21. Sir Ivor Jennings has asserted ( Cabinet Government (3rd edn), p. 86) that:
‘The Queen must not intervene in party politics. She must not, therefore [my italics],
support a Prime Minister against his colleagues. Accordingly, it would be uncon-
stitutional for the Queen to agree with the Prime Minister for the dissolution of a
Government in order to allow the Prime Minister to override his colleagues.* This view
is sustainable if the Prime Minister is known to have been placed, or is believed to
be on the point of being placed, in a minority in his own Cabinet, but not otherwise.
22. See pp. 103-6.
23. A ‘pecking order’ emerges in the list of Ministers and Heads of Public Depart-
ments, at present published by Her Majesty’s Stationery Office five times a year. The
order in which the names of Cabinet Ministers appear is generally attributed to the
Prime Minister’s personal decision. It does not follow, however, that the Prime
Minister is impliedly indicating that the second name in the list is that of his most
appropriate successor.

Cabinet and Prime Minister 153

Cabinet committees. Through his control over the Cabinet Office - a
Cabinet Secretariat was created by Lloyd George in 1916 - he is in a
position to see that the decisions of the Cabinet and its committees are
implemented. 24
12. He is entitled to say what issues shall be referred to him personally
for decision outside the Cabinet. Inter-departmental disputes or deadlocks
in Cabinet committees may be resolved by his informal rulings. And he
may simply, by an uninvited personal initiative or pronouncement, con-
front his colleagues with & fait accompli .

The Prime Minister personally presides not only in the Cabinet but
13.
also in some of the more important standing committees of the Cabinet -
for example, the Defence and Oversea Policy Committee. In the not so
distant past, Prime Ministers also saddled themselves with heavy depart-
mental responsibilities, as Foreign Secretary or Minister of Defence. This
is likely Prime Minister, as the
to be a disadvantage nowadays, but the
country’s principal spokesman on the international scene, must inevitably
concern himself closely with foreign and Commonwealth affairs, matters of
defence and security, and economic policy. For a short period in 1967-8
Mr Wilson was effectively in charge of his own creation, the Department of
Economic Affairs. Mr Heath was the driving force behind Britain’s
decision to join the European Communities.

14. Since the Prime Minister

an international figure and a national
is

leader, he is dominating his colleagues. His visits

potentially capable of
overseas to discuss matters of high policy, his speeches, answers to ques-
tions and interventions in the House of Commons, his performances on
television and his other public addresses attract a degree of attention
which no other politician in the country is likely to emulate. Moreover, he
controls the Government’s information services. As leader of his party he
has another powerful organization behind him to project his image in its
most favourable light; for if the public reputation of the Prime Minister
sags, the prospects of the party remaining in office after the next General
Electioirwill dwindle; and it is not easy to remove a party leader tenacious
of office and of the authority and deference that go with it.
15. At' a General Election, the voters know that they are choosing a
Government. To many of them, the choice is not so much between party
programmes or party images as between the personal qualities of the
Prime- Minister and the Leader of the Opposition. If a Prime Minister
and his advisers on public relations see this as the dominant factor in
voting behaviour, the consequence will be the devotion of a dispropor-

24. On the Cabinet Office, see pp. 157-9.

1 54 The Executive
tionate amount of publicity to the Prime Minister at the expense of his

colleagues.

16. The Prime Minister enjoys, by convention, substantial powers of

Some of these powers are apt to be a nuisance
- ‘Damn!
patronage.
another bishop dead’, as Lord Melbourne remarked - and others, such
as the power to advise on appointments to the highest judicial and military
offices, are of no political advantage to him because of expectations that
appointments shall be non-partisan. But there are others which enhance
his personal authority, if only because the hope of preferment tends to
muffle the voices of carping critics. One who attracts the favourable notice
of the Prime Minister or those closest to him may cherish the prospect,
ifnot of political office, at least of a place in the honours list, even a
peerage, or perhaps the chairmanship of one of the multifarious statutory
corporations, advisory and consultative bodies, royal commissions or
committees of inquiry by virtue of the Prime Minister’s nomination. The
increase in the peripheral adjuncts of government, as the reach of central
government has expanded and its workings have become more complex,
has undoubtedly enlarged the area of ministerial patronage.
17. The Prime Minister is the channel of communication between the
Cabinet and the Queen. It is his duty to keep her adequately informed on
matters of State, and she holds a private audience with him weekly. These
contacts tend to enhance the prestige of his office.

Executive power: some correctives

We have said a good deal about the Prime Minister but precious lillle about
the Cabinet. Because the Prime Minister’s conventional powers and general
authority in the scheme of the constitution are very great, and because one
can point to examples of dramatic Prime Ministerial decisions as
Eden’s decision to engage in the Suez venture, or Macmillan’s decision to
dismiss a third of his Cabinet) taken outside the Cabinet, one can easily
be led to the conclusion that the Cabinet is no more than a Prime Minister’s
instrument at any given time. For reasons which must already be fairly
obvious, it is too early to draw such a conclusion.
Disquisitions on the sovereignty of the Prime Minister bear some re-
semblance to discussions of the sovereignty of Parliament. Parliament in
its wisdom might pass any number of appalling Acts without stepping

beyond the limits of its constitutional authority, but somehow it does not
regularly perpetrate gross abuses of its formal omnipotence. If a Prime
Minister were to behave in a preposterous manner he would lose credit
among his senior colleagues (who would resign if he had not already dis-
missed them), in the country and in his party; such a combination will

Cabinet and Prime Minister 155

 ,

be anyone but the most reckless autocrat, and a reckless autocrat

fatal to
who nor mend his ways may have to be dealt with by
will neither resign
unconventional and even extra-legal means. No modern Prime Minister
has been a reckless autocrat. Illustrations of high-handed behaviour
indicate not so much what a Prime Minister can do as the extent to which
he may place his own position at risk. The misfortunes of Suez under-
mined Eden’s health and personal prestige, and his resignation soon
followed; Macmillan’s standing in the Conservative Party and among the
electorate, so strong in 1960, was not restored and may have suffered
irretrievable damage by the dismissals of 1962.
The personification of a Government by the Prime Minister is also an
uncertain asset. In March 1966 the size of the Labour Party’s electoral
victory could be attributed mainly to admiration of Harold Wilson’s
capacity to inspire confidence in his ability.The financial and economic
crisis autumn of 1967 impaired the Prime Minister’s personal
in the
credibility as an astute leader; his Government and his party might have
suffered less in popular support if they had not been so closely identified
with the qualities of their leader.
And so one soon arrives at the conclusion that few conclusions except
the banal and platitudinous can be drawn from recent experience. The
authority of a Prime Minister will depend mainly on such variables as
the confidence and popularity he commands as a leader, his intellectual
grasp of the problems of government, his tactical acumen, his performances
25
as an orator and on the floor of the House of Commons, his ability to
make quick and acceptable decisions and to carry his senior colleagues
and his party with him, the stature of those colleagues (particularly as
potential alternative Prime Ministers), the international climate, the state
of the country’s economy, sheer luck, and the often fickle moods of public
opinion 26 (‘It’s time for a change’). In wartime the personal authority of a
Prime Minister may be overwhelming, as it was under Lloyd George from
1916 to 1918 and under Churchill from 1940 to 1945; it was by no means
overwhelming under Asquith from 1914 to 1916 or under Chamberlain
from 1939 to 1940. One is tempted to assert that all generalizations are
false, including, of course, the one just offered.

25. The resignation of Sir Alec Douglas-Home from the leadership of the Con-
servative Party in July 1965, some months after the party had suffered defeat at a
General Election, is attributable first to a general awareness (not least among his own
colleagues) that in some of these qualities he compared unfavourably with Mr Harold
Wilson, and secondly to a capacity for self-effacement rare among politicians.
26. Yet Mr Richard Crossman, having conceded points such as these at the begin-
ning of the Introduction to Inside View goes on to restate his concept of Prime
Ministerial government. See now his views formed after holding Cabinet office: above,
note 7w

156 The Executive

 It is at least questionable whether the effective power of the Prime

Minister in relation to that of his ministerial colleagues has been greater

in the period since 1945 than during the inter-war years. Certainly the
powers of the Executive have grown as the reach of the central govern-
ment into the nation’s economy has extended and the welfare State has
been nurtured. But most of these powers (including powers of appoint-
ment) are vested in named Ministers. No matter how versatile, energetic
and able a Prime Minister may be, he can never be in a position to exercise
close supervision over all the increasingly complex activities of the Depart-
ments, or indeed keep fully abreast of the technological and scientific
developments with which their expert officials and advisers must be
familiar. Coordination, supervision and the resolution of disagreements
are achieved through inter-departmental committees, Cabinet com-
mittees and the Cabinet as a whole, as well as by the Prime Minister’s
informal rulings and by the machinery of the Cabinet Office. The chairmen
of the more important committees may thus acquire a largely independent
base of influence, even though they hold their places by the grace of the
Prime Minister.
Some of the propositions set out in the preceding section must also be
amplified or qualified. The Prime Minister does indeed control the Cabi-
net’s agenda, but in practice he will often find it imprudent and will
sometimes find impracticable to exclude discussion of a question which
it

other Ministers regard as important. He decides when the Cabinet is to

meet; he presides at meetings; he is not bound to defer to the opinion of
a majority of the Cabinet on any given issue, but if he persists in by-
passing or attempting to override a majority of his colleagues the Govern-
27
ment will soon disintegrate through resignations, and it is therefore in
his interest toattempt by persuasion to establish a consensus in favour of
his own (if he has already formed a firm view) but not to press his
views
colleagues too hard. The fact that by the act of resignation an individual
Minister may consign himself to years in the political wilderness is not
enough to encourage a Prime Minister to court mass resignations or a
major revolt.
Again, it is sometimes said that the power of the Prime Minister (acquired
since the First World War) to advise a dissolution of Parliament without
the prior concurrence of his colleagues places in his hands an enormously
potent weapon to subdue restiveness or crush rebellion within the ranks.
Here analogies with nuclear weapons are relevant. They can be used, but
the result is likely to be suicidal; hence threats to use them may not always

27. On ministerial threats of resignation as a tactical weapon to influence govern-

ment policy, see R. K. Alderman and J. A. Cross, The Tactics of Resignation , ch. 2.

Cabinet and Prime Minister 1 57

be taken seriously. For a Prime Minister overtly to remind fractious or
openly rebellious colleagues or party backbenchers that he might feel
obliged to request a dissolution, the disloyal being denied official party
support at the ensuing General Election, is seldom a wise move. If the
threat is carried out, the electorate may well turn away from a party in
disarray and put the Opposition in office; a penal dissolution is apt to
prove a boomerang and everybody knows this. This is not to say that an
open threat by the Prime Minister to advise a dissolution will have no
positive political impact whatsoever; but it does imply that the fairest
comparison is with a threat by the Prime Minister to tender his Govern-
ment’s resignation. Dissent is better dealt with by bold leadership, or by
accommodation and compromise, or, if necessary, by the dismissal of
malcontents from the Government, or withdrawal of the party whip from
backbench rebels, or simply by non-endorsement of a candidate at a
General Election to be held at an indeterminate date; again, everybody
knows this, and facts which everybody knows tend to condition political
behaviour.
When one says that the Prime Minister controls the Cabinet Office,
one is not asserting that this Office is merely his pliant instrument. The
main constitutional function of the Office28 is to provide a Secretariat
for the Cabinet and its committees, distributing memoranda and agenda
papers, recording proceedings and compiling and circulating minutes.
Documents issued by the Secretariat go to departmental Ministers who
are not members of the Cabinet. The work of the Secretariat therefore
enables all Ministers to become better informed about major decisions
and their factual background. This makes a Government more efficient,
and incidentally justifies a reduction in the size of a Cabinet; it does not
necessarily elevate the Prime Minister still higher above his colleagues,
though it provides special briefs for the Prime Minister and helps him to
follow up The Cabinet Office,
action taken in pursuance of decisions.
moreover, not the Prime Minister’s private office. It is staffed mainly
is

by permanent civil servants, of whom a substantial proportion are officers

of high seniority and standing; and the Secretary to the Cabinet, the head
of this Office and just as independent as his colleagues, is possibly the
most important member of the public service. Nevertheless, a Prime

28. See generally, R. K. Mosley, The Story of the Cabinet Office (1969). In 1971 and
1972 the administrative coordination of negotiations and arrangements for Britain’s
entry into Europe was a matter for the Cabinet Office. Following Britain’s entry, the
Office has remained the clearing-house for Community affairs. The Office has also
housed the Devolution Unit since February 1974. Nearly 700 civil servants were
employed in the Cabinet Office in April 1976: 911 H.C. Deb. 649-50 (written answers
20 May 1976).

158 The Executive

 29
Minister’s close personal relations with the Secretary to the Cabinet will
place him at an advantage in controlling the machinery of central govern-
ment. He will also have close relations with the Director-General of the
30
new Central Policy Review Staff.
The Prime Minister also has a small separate Private Office: this is also

composed mainly of established civil servants, but it will naturally

include persons whom the Prime Minister finds particularly congenial. It is
still far too minute to rival the influence of the
Cabinet Office in the funeral
working of the machinery of central government. Any comparison with
31

the White House staff of an American President would be derisory.

Some of the many internal restraints that are potentially capable of
curbing a Prime Minister’s freedom of action are illustrated by the fate of
32
the proposal to introduce an Industrial Relations Bill in 1969. Clauses
of the bill providing for the imposition of judicially enforceable sanctions
against participants in ‘wildcat’ strikes were strenuously advocated by the
Prime Minister, the Secretary of State for Employment and Productivity
and other senior members of the Government. They were also, so it
appeared from opinion polls, generally favoured by a large majority of the
public. The Conservative Party thought that the penal clauses were, if
anything, too weak. The introduction of legal sanctions was implacably
opposed by the Trades Union Congress. The trade" union view was but-
tressed by a majority of the National Executive Committee of the Labour
Party; Mr James Callaghan, the Home Secrctaiy and a member of the
reconstituted Parliamentary Committee of the Cabinet (the new ‘inner
Cabinet’) cast his vote with the majority of the National Executive, and
was promptly dropped for the time being by the Prime Minister from the
Parliamentary Committee, though he remained a member of the Cabinet.
In the course of the lengthy negotiations with the Council of the Trades
Union Congress it became Government would have great
clear that the
difficulty in carrying its with it, and the Labour move-
own backbenchers
ment in the country would be deeply riven and that the party was in
danger of losing its financial backing from the trades unions. Opinion
within the Cabinet appears to have gradually moved against its original
policy. In June it was announced that the bill would not be proceeded with
during that session, and that in any event the penal clauses would be

29. Patrick Gordon Walker {The Cabinet p. 55) comments that ‘the Cabinet
,

Secretary has become something like a Permanent Secretary to the Prime Minister’.
30. See p. 189.
31. On 1 January 1976 the Prime Minister’s staff at 10 Downing Street numbered65;
906 H.C. Deb. 368-9 (written answers 27 February 1976).
32. The incoming Conservative Government procured the enactment of the Indus-
trial Relations Act 1971, in its turn repealed at the instance of the 1974 Labour Govern-

ment.

Cabinet and Prime Minister 159

dropped altogether in return for a solemn declaration of intent by the
Council of the Trades Union Congress that it would take action to prevent
4
unconstitutional work stoppages and, if necessary, apply its own internal
*

sanctions against violators. Mr Wilson hailed the extraction of this

declaration of intent as a famous victory; the party took pleasure in the
outcome; nobody resigned. Others, less sympathetic, spoke of capitulation
to a powerful pressure group, and pointed out that the Government had
already decided to abandon part of its restrictive incomes policy and to
withdraw the bill for the reform of the Lords in order to facilitate the
introduction and passage of its Industrial Relations Bill.

Cabinet committees: a note

The Cabinet committee system is clearly of first-class importance in the

machinery of central government. But the secrecy enveloping this system

is even harder to penetrate than the working of the Cabinet itself. In no

official publication is there so much as a full list of these committees, let

alone the names of their chairmen and members, a statement of their

functions, or their relationships with the Cabinet as a whole. 33 When a
Government has departed from the political scene, a fuller account of its
committee system may become available: 34 contemporary details are
rarely divulged.
Disclosures made in 1968, however, made it possible to glean impres-
sions of the system then in being. 35 There were standing committees
and
ad hoc committees. The principal standing committee, created in that
year, was the Parliamentary Committee, composed of the Prime Minister
and nine senior Ministers; it met twice a week and made decisions on a
wide range of policy issues; its decisions were reported to the Cabinet,
which was reduced to meeting once a fortnight. Issues decided by the
Committee could be reopened by any Minister in the full Cabinet, but
seldom with any prospect of success. 36
33. The need for complete secrecy was justified by Sir Burke Trend, the Secretary
to the Cabinet, giving evidence before the Franks Committee on Section 2 of the
Official Secrets Act 1911 (Cmnd 5104 (1972), Minutes of Evidence, vol. 3, pp. 324-6)
as being essential for the maintenance of collective responsibility for Cabinet decisions
- a most unconvincing reason - and the prevention of leakages, cf. ‘Whitehall’s
Needless Secrecy’, The Times, 3 May 1973, naming sixteen committees.
34. See Wilson, The Government of Britain (1976), pp. 62-8.
35. John P. Mackintosh, * Mr Wilson’s Revised Cabinet System*, The Times , 21 June
1968. For a general description of recent Cabinet committee systems, see Mackintosh,
The British Cabinet (3rd edn), pp. 521-9. See also Patrick Gordon Walker, The
Cabinet, Appendix, for a list of the standing committees of the Cabinet in 1964.
36. The Parliamentary Committee was not re-introduced when Mr Wilson returned
to office in 1974, and the Cabinet resumed the customary frequency of meeting. His
successor, Mr Callaghan, continued these arrangements.

160 The Executive

 There were other standing committees with executive powers as well
as powers to make recommendations. The Prime Minister presided over
37
the Defence and Oversea Policy Committee and the Economic Policy
Committee; the Chancellor of the Exchequer over the Public Expenditure
Scrutiny Committee; the Leader of the House .of Commons over the
Future Legislation Committee (which considered projected bills) and the
Legislation Committee (which considered the current legislative pro-
gramme and the details of bills and major statutory instruments); there
was a Social Services Committee, a Home Affairs Committee, and so on.
Ministers dissatisfied with a committee decision could appeal to the
Prime Minister but no longer to the Cabinet as a whole unless the chair-
man agreed. Chairmen of committees could also bring potentially con-
tentious matters to the attention of the Prime Minister or the Parliamentary
Committee. Some of these procedural arrangements signified a temporary
diminution in the status of the Cabinet. But the system in being at any time
reflects both the idiosyncratic style of an individual Prime Minister and the
constraints, both extrinsic to and within the Government, to which he
feels himself subject.
Many of the Cabinet committees are supported by a parallel committee
of senior belonging to the Departments whose political heads are
officials
members of the principal committee. Some of the committees have be-
gotten specialized sub-committees. It should be re-emphasized that Minis-
ters not of the Cabinet may be and are appointed to Cabinet committees.
Senior officials (and in the case of the Defence and Oversea Policy Commit-
tee, the Chief of the Defence Staff and the chiefs of staff of the three armed
services) may also be invited to attend while a particular issue is under con-
sideration. An official may even represent his Department on a Cabinet
Committee. The head of the Central Policy Review Staff 38 was present at
Cabinet meetings under Mr Heath’s Government.

Ministerial responsibility

That the Cabinet and its members are ‘collectively responsible* is an

undoubted constitutional convention. But what does collective respon-
sibility signify? In many of the newly independent Commonwealth coun-
tries British conventions have been spelt out in some detail, often with
modifications, in the texts of the constitutions. On Cabinet responsibility,

37. The composition of this committee had been announced in 1963 (Cmnd 2097)-
a curious phenomenon, since this committee deals with the most highly confidential
matters, and a primary reason for preserving secrecy about the composition of com-
mittees is to prevent journalists from guessing accurately what topics are under
discussion.
38. See p. 189.

Cabinet and Prime Minister 161

Barbados is nevertheless laconic. ‘The Cabinet shall be the principal
instrument of policy and shall be charged with the general direction and
control of the government of Barbados and shall be collectively respon-
39
sible therefor to Parliament’. It is wise not to attempt to define in a

constitutional document what exactly collective responsibility means,

because the outlines of the concept are so vague and blurred. It can be
described at a high level of generality; it can be illustrated by specific
examples; a neat but comprehensive set of propositions cannot be devised,
if only because the gulf between traditional constitutional theory (to

which lip-service may still be paid) and political practice yawns so widely.
Responsible for what and to whom ? And what exactly do we mean by
‘responsible’? Does the substitution of words like ‘accountable’ or
‘answerable’ clarify the issues at all ? 40 Perhaps it is more helpful to begin
with the concept of the individual responsibility of Ministers, which
raises some of the questions in a still more difficult way. Historically,
moreover, the principle of individual ministerial responsibility preceded
the doctrine of collective responsibility.
All Ministers, whether they be in or outside the Cabinet, are responsible
for their personal acts, the general conduct of their Departments and acts
done (orundone) in their name by their departmental officials.
left

Responsibility may be political, legal, or both political and legal; and the
meaning of responsibility, and the persons or bodies to whom it is owed,
will vary according to the context.
Ministers are legally responsible in their private capacities for acts
which they order or authorize to be done, or in which they actively par-
example, such an act proves to be a trespass, the Minister
ticipate. If, for
can be sued personally for damages as a tortfeasor. To Dicey, the personal
liability of Ministers and officials for civil wrongs before the ordinary
courts applying the ordinary law of the land, subject to any special
statutory powers that might be vested in them to encroach on private
rights, was a cardinal feature of the rule of law in Britain. Today this
aspect of ministerial responsibility is of little practical importance, for
since 1947 it has been possible to sue the Crown as the Minister’s em-
ployer for torts committed in the purported exercise of legal powers and
duties.
Ministers are legally and politically responsible for formal acts done

- Barbados Independence Order 1966 (S.I. 1966, No. 1455), Schedule, s. 64(2).
39.
40. Geoffrey Marshall and G. C. Moodie, Some Problems of the Constitution
cf.

(5th edn); A. H. Birch, Representative and Responsible Government ; John P. Mac-

kintosh, The British Cabinet (3rd edn); Andrew Shonfield Modern Capitalism Part 4;
,

D. N. Chester and Nona Bowring, Questions in Parliament, Appendix 2; Henry Parris>

Constitutional Bureaucracy, chs. 3, 4, 10.

162- The Executive

by the monarch, under prerogative or statutory powers, in which they
have participated by virtue of their attendance at a meeting of the Privy
Council, or their countersignature of the royal sign manual or their
custody of a royal seal. The strictly legal rationale of these customary
procedures has now disappeared.
Parliament used to bring Ministers to account by a semi-judicial process.
The King could do no wrong in the eyes of the law (unless he was Charles I
or James II) and it was more satisfactory und expedient to attack his
advisers for their evil counsel by charging them with high crimes and
misdemeanours. The Commonswere the accusers; the Lords were the
judges; the process was called impeachment. Not only Ministers, but
officials and judges accused of corruption, were impeached; the verdicts

were not necessarily a foregone conclusion. During the course of the

eighteenth century votes of censure against Ministers and Governments
gradually replaced the cumbersome machinery of impeachment; political
accountability was better achieved without a heavy-handed political trial
The last impeachment was brought in 1805 ; 41 the procedure has never
been abolished but is in practice obsolete.
As long as Ministers were men appointed and dismissed by the King
in his personal discretion, men with whom he would confer individually
or in small groups, their first was to the monarch. Individual
loyalty
ministerial responsibility to the Crown remained a reality for more than
a century after the existence of a Cabinet was publicly acknowledged.
Responsibility in this form was superseded by the development of col-
lective Cabinet responsibility, a responsibility owed simultaneously to the
Crown and Parliament, then (after the effective withdrawal of George III
from political leadership) to Parliament rather than to the Crown, 42 and
then, after the enlargement of the franchise in 1832, to the House of
Commons rather than to Parliament as a whole. The implications of
collective responsibility were not fully worked out till the years after 1867,
when a further and more substantial extension of the franchise led to the
evolution of mass political parties. To these implications we shall return.
They are not identical with the implications of individual responsibility,
but the two concepts are intertwined and co-exist.
Ministers are politically answerable in respect of matters lying within
their statutory or conventional fields of responsibility. They are respon-
41. The defendant (who was acquitted) was Lord Melville, formerly Treasurer to the
Admiralty. The last impeachment before that was the case of Warren Hastings,
Governor-General of India; the proceedings, instituted in the 1780s, dragged on for
years. The first impeachment took place in 1376.
42. For the modification by Parliament of its first decision early in the eighteenth
century to keep Ministers and royal placemen out of the House of Commons altogether,
see p. 144.

Cabinet and Prime Minister 163

 sible not only for their personal acts but for the conduct of their Depart-
ments. The area of statutory responsibility is determined by the legislation
(if any) establishing their offices and particular Acts and subordinate
legislative instruments endowing them with powers and duties. If a
Minister has no power or duty to take any action with regard to a matter,
he cannot properly be held accountable to Parliament for what is done
or left undone; hence, a Minister is not expected to answer parliamentary
questions about the day-to-day administration of nationalized industries 43
and many other public corporations, or most of the activities of local
government authorities or the police 44 To some Ministers powers and
.

duties are assigned by convention - for example, to the Secretary of State

for Foreign and Commonwealth Affairs, most of whose functions are
non-statutory; to the Home Secretary in respect of advice on the exercise
of the prerogative of pardon; to the Attorney-General in respect of
decisions whether to enter a nolle prosequi to stop a trial on indictment.
The conventions may, like those just referred to, be well-established,
surviving changes of government; or they may be the product of an
informal re-allocation by the Prime Minister of responsibilities among his
Ministers, especially Ministers such as the Lord President of the Council,
the Lord Privy Seal, the Chancellor of the Duchy of Lancaster and the
Paymaster-General, whose formal departmental functions are small or
nominal.
The meaning of political responsibility cannot be precisely defined. If
a Minister is personally blameworthy, he ought to make a public admission
of his responsibility. Personal culpability may be attributable to private
or public conduct unbecoming to a Minister of the Crown, in which case
43
there will be an expectation that he will resign ; or to bad judgement or
departmental maladministration, in which case there cannot be said to be
any clear-cut convention about a duty to offer resignation 4 Unless the
.
*1

43. But see p. 215.

44. See ch. 17
45. Earl Jellicoe and Mr Lambton resigned in 1973 following revelations that they
had been associating with prostitutes. Mr John Profumo resigned in 1963 after it was
revealed that he had made a false statement to the House of Commons in rebuttal
of allegations about his private life. Mr J. H. Thomas in 1936 and Dr Hugh Gallon in
1947 resigned after it became known that they had perpetrated premature disclosures
of provisions of the Budget, though in Dr Dalton’s case there was not the slightest
suggestion of any improper personal motive and his indiscretion had no adverse effect
on the country’s finances. For a list of resignations this century and notes on the
reasons, see David Butler and Anne Sloman, British Political Facts 1900-1975 4th,

edn, 1975, pp. 75-6.

46. See S. E. Finer (1956) 34 Public Administration 377; P. J. Madgwick (1966-7)
20 Parliamentary Affairs 59; R. K. Alderman and J. A. Cross, The Tactics of Resig-
nation .

164 The Executive

Prime Minister is unwilling to stand by the Minister under attack - and in
thiscontext the personal authority of a Prime Minister is of great import-
ance - a Minister may choose, and has not infrequently chosen in recent
years, to brazen out appalling indiscretions, gross errors and omissions,
plans gone awry and revelations of disastrous mismanagement within his
Department. If the Opposition is allowed time to move a vote of censure,
or if a supply day is selected for the purpose of moving a motion to reduce
the Minister’s salary, the Minister can confidently expect to emerge
triumphant in the division lobbies, with members voting strictly along
party lines 47 Yet his victory may prove to be pyrrhic and ephemeral. The
.

Prime Minister may shift him to another office carrying less prestige in
the next ministerial reshuffle; he may ‘kick him upstairs’ to the Lords; he
may quietly call for the Minister’s resignation at a moment less em-
barrassing for the Government, or gratefully accept a half-hearted offer of
resignation comes. A Minister who is incapable of explaining and
if it

justifying his conduct of affairs persuasively in the face of a hostile Oppo-

sition, or to the satisfaction of independent political commentators, is a
Government and the party.
liability to the
Given that the idea of ministerial culpability for personal failings is so
shapeless, a detailed analysis of degrees of ministerial responsibility for
the conduct of departmental affairs and officials would not be very helpful.
A Minister is expected to answer questions about these matters in Parlia-
ment unless the question must be disallowed by parliamentary practice
(for example, because it deals with an issue sub judice) or unless the
Minister feels bound to refuse an answer or a full answer on grounds of
national security, in which case he will have to face the prospect of personal
48
criticism In answering questions, or in replying to a debate, he c'snrot
.

be expected to accept that he is himself culpable whenever a departmental

official has committed a dishonest act or has disobeyed instructions

or exceeded his authority. He is entitled to explain in public what has

occurred; but he cannot totally absolve himself of responsibility. To use
47. TheSecretary of State for Industry was unlucky in February 1976 on a motion
to reduce his salary. A
mistake in the division lobbies necessitated a recount, before
which some Government MPs had gone home: the motion carried by five votes but
it was reversed within a few days:' see 905 H.C. Deb. 461-527 (11 February 1976);

1135-1204 (17 February 1976).

48. For a list of matters on which successive Ministers have refused to answer
questions, either for reasons of public interest or because they lie outside the field of
ministerial responsibility, see Report of the Select Committee on Parliamentary
Questions (H.C. 393 (1971-2), pp. 114-17). In 1956 Eden, as Prime Minister, refused
to disclose the circumstances in which Commander Crabb, a naval security officer, lost
his life in Portsmouth Harbour - in fact he was drowned while investigating Soviet
warships at anchor - but stated that what was done was not authorized or approved
by a Minister and that disciplinary action would be taken.

Cabinet and Prime Minister 165

 a colloquialism which, eluding exact definition, is still well understood,
he must, in the last resort, ‘carry the can \ 49 If maladministration within his
Department is attributable to bad organization or procedures or defective
supervision, or exists on such a large scale or at so high a level that he
ought to have been able to prevent it, then he is in some degree blame-
worthy. 50 But Sir Thomas Dugdale’s personal decision to resign as
Minister of Agriculture in 1954 because of the exposure of maladminis-
had had no personal knowledge)
tration -by senior officials (of which he
in the over-celebrated Crichel Down
51
was not demanded by con-
affair
ventipn; certainly other Ministers have not sought to emulate him by
exacting the supreme political penalty on themselves, and it would be
unrealistic to expect them to do so, particularly if wide decision-making
powers have been delegated to the official concerned. 52 Even Mr James
Callaghan’s resignation from the office of Chancellor of the Exchequer
in November 1967, after he had long striven but finally failed to save the
pound from devaluation, was considered to be commendable rather than
obligatory. His immediate translation to the Home Office was not out of
keeping with the spirit of the contemporary constitution.
The political answerability of Ministers has helped to preserve the
impartiality and anonymity of civil servants; they have been reasonably
secure from public censure and, therefore, find it easier to give unstinted
loyalty to a succession of political masters. official anonymity has
But
not been an unmixed blessing; and, as the Fulton Committee on the civil
service pointed out, 53 it is gradually being eroded. It is being eroded, in
by the activities of specialized select committees of the House
particular,
of Commons 54 and the Parliamentary Commissioner for Administration55
(the Ombudsman). The Parliamentary Commissioner not only scrutinizes

Report of the Parker Committee on the Use of Authorized Procedures for

49. cf. the
Interrogation of Persons Suspected of Terrorism in Northern Ireland (Cmnd 4901
(1972)), indicating that the unlawful practices adopted had never in fact been authorized
by a Minister and may not have even been known to Ministers. They were nevertheless
politically answerable for the conduct of the security forces.
50. cf. the slightly different formulation by the then Home Secretary, Sir David
Maxwell Fyfe, in 530 H.C. Deb. 1285-8 (20 July 1954), quoted in Geoffrey Wilson,
Cases and Materials on Constitutional and Administrative Law, 2nd edn,-1976, pp.
162-4.
51. Cmd 9176 (1953); Cmd
9220 (1954); Wilson, op. cit., pp. 155-64; J. A. G.
.Griffith (1955) 18 Mod . N. Chester (1954) 32 Public Administration 389.
L. Rev. 557; D.
Dugdale was later elevated to the peerage as Lord Crathome. He was chairman of the
Political Honours Scrutiny Committee (see p. 140) from 1961 to 1976,
52. As in the Vehicle and General affair; note 57.
53. Cmnd 3638 (1968), vol. 1, p. 93.
54. See ch. 12.
55. See ch. 29.

1 66 The Executive
 departmental procedures but has, on rare occasions, singled out identi-
56
fiable civil servants for criticism. He has yet to go as far as the judicial
tribunal of inquiry on the collapse of the Vehicle and General Insurance Co.
(1972), which affixed blame on a named senior civil servant in the Depart-
ment of Trade and Industry for failing to set in motion an in vwngation
of the Company’s affairs, but exonerated the responsible Ministers. 57 If
this type of inquisition were to become frequent, it would be impossible to
expect servants not to answer back. Nevertheless, ministerial respon-
civil

sibility remains as a protective, if slightly tattered, cloak for the civil

service, and at least no serious complaint of political partisanship against
senior civil servants has yet been substantiated.
The collective responsibility of the Cabinet to the House of Commons
is still sometimes spoken of as a democratic bulwark of the British consti-

tution. After all, did not five Governments resign between the years 1852
and 1859 as a result of being defeated on votes of confidence in the
House? 58 (True, democracy was then a pejorative term, but who cares?)
Rather more to the point is thatno Government has forfeited the con-
fidence of the House since 1924, when Ramsay MacDonald’s first Labour
Government, which never had an overall majority in the House, found
itself deserted by its Liberal allies. On several occasions since 1945,
Governments have been defeated in the House on particular issues because
their whips have been outmanoeuvred by the Opposition or because of
absenteeism. The Government has then usually mustered its full resources
and procured a reversal of the vote. 59 There has been no defeat on an
unequivocal issue of confidence, 60 such as the budget resolutions or the
address in reply to the Queen’s speech at the opening of a session. Mr
Harold Wilson was able to sustain himself in office from 1964 to 1966 with
a majority of less than six; and he then won a handsome victory at a
General Election held at the most advantageous moment for his party. And
again the Labour Governments from February 1974 to the time of writing
have survived with no, and then a tiny, overall majority. Neville Chamber-
lain, on the other hand, decided to resign after a vote in the House on a

56. See, for example, H.C. 316 (1968-9) ( Third Report of the Parliamentary Com-
**
missioner for the Session 1 968-9).
57. H.C. 133 (1971-2); the report was debated in 835 H.C. Deb. 33-161 (1 May
1972). There was much criticism that the civil servant concerned had not been granted
adequate facilities todefend himself before the tribunal of inquiry.
58. Particulars are supplied by Jennings, Cabinet Government (3rd edn), pp. 512-15.
59. For recent examples, see pp. 149, note 12, 165, note, 47.
60. There is no formal definition of a matter of confidence. If a Government
explicitly states that it regards a vote as one of confidence, or if the Opposition has
moved a motion of no confidence, the Government must, of course, stand or fall by the
result.

Cabinet and Prime Minister 167

motion of censure in May 1940; but the motion was defeated by eighty-one
votes. It is a nice question which was the more significant fact - that he
retained a substantial parliamentary majority after having forfeited the
confidence of the general public, or that thirty-three Conservatives voted
against their own leader and eighty others abstained.
Because a Government must maintain a majority in the House of
Commons as a condition of survival - it can ignore defeats in the Lords -
ithas to ensure party solidarity. Doubtless this reduces the results of most
of the contentious debates in the House to foregone conclusions; but a
Government which is driven to rely on disciplinary sanctions and threats
of sanctions, and an autocratic disregard of the interests of the Opposition
and private members generally in the allocation of parliamentary time, is
not going to endear itself to the electorate. The fact that the executive
branch is parliamentary has an influence, which cannot be quantified, on
the style of British politics.
all Cabinet Ministers assume
Collective responsibility also implies that
and action taken to implement those
responsibility for Cabinet decisions
decisions. A Minister may disagree with a decision
61
or with the manner
of its implementation, but if he wishes to express dissent in public he
should first resign.
These two propositions need to be explained and qualified.

1. The convention of public unanimity is settled, at least to the extent that

it be regarded as constitutionally improper for a Minister to remain
will
in office if he has overtly dissociated himself from Cabinet policy. It is
open to the Prime Minister to condone a verbal indiscretion by a colleague,
and even to overlook a studied refusal by a colleague to offer positive
commendation of a policy which he dislikes though the line between
,

half-hearted formal acquiescence and hints of real disagreement may wear

thin. In this century the convention has twice been expressly waived for a
62
few months: the 1975 experiment was a success, that of 1932 a failure.
But such experiments are obviously rare and, despite occasional deviations
from the norm, the general principle stated above is clear.
2. Public unanimity conforms to expectations of the electorate (which
frowns upon a Government in disarray) and strengthens the hands of a
Government in relation to its own backbench dissenters, the Opposition
and political commentators, all of whom are alert to any suspicion of
discord within the Cabinet. But from time to time, when a Minister finds
the strain of maintaining a tight-lipped silence insupportable, he will

6L But the practice ofhaving his dissent recorded in the minutes was ended in 1964:
Wilson, The Governance of Britain (1976), pp. 58-9.
62. See p. 60, note 77.

1 68 The Executive
 ;

deliberately ‘leak’ his ‘unattributable’ private views to a journalist. This

practice 63 has been defended
64
as being necessary for the preservation of
the basic convention - in much the same way as discreet adultery might be
justified as the only means of safeguarding the state of holy matrimony.
Leaking (as distinct from ‘briefing’, which involves the authorized dis-
65
closure of information ) may be by Ministers, including the
resorted to
Prime Minister, to fortify or explain their position when there is a split in
the Cabinet. A
notable example was the disclosure to backbenchers and
journalists of divisions in 1967 over the question whether to resume arms
66
sales to South Africa. The convention can be interpreted and applied
very flexibly.

3. The show of unanimity about past

obligation to preserve an outward
decisions supposed to continue after the Government, or the Minister
is

who had been placed in a minority, has left office. But the force of this
obligation is weak.

(a) If a Minister has decided to resign because of disagreement on a policy

67
issue he is customarily allowed to publish the nature of the disagreement
in his letter of resignation and to make a resignation speech in Parliament
if he so wishes.
The general principle is that disclosures of Cabinet discussions or
decisions by former Ministers are permissible only with the Sovereign’s
consent, communicated by the Prime Minister of the day through the
medium of the Cabinet Office. The national interest, and the interest in en-
couraging the utmost frankness in Cabinet discussions leading up to a
policy decision, will sometimes be prejudiced if it is thought that Ministers
will be at liberty to rush into print or be propelled on to the television
screen with their memoirs and reminiscences as soon as they leave office.
Yet over the years, and particularly since 1970, ex-M misters have dis-
closed with impunity Cabinet discussions and disagreements; the general
principle has now been tested in the courts and found wanting. Mr Richard

63. Now well documented. See Colin Seymour-Ure, The Press , Politics and the
Public, ch. 6; Jeremy Tunstall, The Westminster Lobby Correspondents Patrick
Gordon Walker, The Cabinet (1972 edn), pp. 26-33.
64. Gordon Walker, pp. 27-8, 32.
65. cf. Mr James Callaghan, giving evidence to the Franks Committee on Official
Secrecy: ‘You know the difference between leaking and briefing. Briefing is what I do
and leaking is what you do* (Cmnd 5104 (1972), vol. 4, p. 187).
66. Gordon Walker, 29-30; Wilson, The Labour Government 1964-1970 ,
pp.
pp. 470-76; George Brown, In My Way pp. 163-7. ,

67. See Alderman and Cross, op. cit., Appendix. In 1968, Mr George Brown,
Foreign Secretary and Deputy Leader of the Labour Party, resigned on a procedural
issue about the method of taking major policy decisions. For further examples, see
Butler and Sloman, op. cit., pp. 75-6.

Cabinet and Prime Minister 169

Crossman held various Cabinet Labour Governments of
posts in the
1964-70. He kept and work as a Minister. After
detailed diaries of his life
he left office The Sunday Times wanted to serialize them, and after his death
in 1974 his literary executors wished to publish them in book form. The
Secretary to the Cabinet was not satisfied by the cuts which they were pre-
pared to make, and so the Attorney-General brought an action against
the newspaper, the executors and the book publishers seeking a permanent
injunction to prevent such publication. He relied on both the confidential
nature of the materials, which flowed from the convention of collective
Cabinet responsibility, and also on the argument that free discussion in
future Cabinets would be inhibited if the materials were published in a way
which disclosed the attitudes and views of individual Ministers - and civil
servants. The Attorney-General did not rely on Mr Crossman’s oath as a
Privy Councillor or on the Official Secrets Acts (both of which had
previously been assumed to buttress the secrecy of Cabinet discussions
and to form the bases of the vetting procedure). The injunctions were
refused. 68
The Lord Chief Justice held that the courts indeed have the power to
prevent publication of Cabinet material if such publication (i) would be a
breach of confidence and (ii) would be against the public interest in
prejudicing the maintenance of the doctrine of collective responsibility.
However, there would, in his Lordship’s view, come a time when the con-
fidential nature of the material ceased to exist, such time depending on the
circumstances of each case; as nearly ten years had elapsed since the events
contained in the first volume of the diaries, publication could not prejudice
the doctrine of collective responsibility in the 1975 Cabinet - despite the
fact that many of its members had sat in the Cabinet with Mr Crossman.
Only time and the literary efforts of ex-Ministers (and ex-Prime Minis-
ters?) will show where this case leaves the ‘convention’ of collective
69
responsibility.

(b) The convention (such as it is) extends to decisions of which a Minister

was not aware at the time but to which he subsequently gave his tacit
approval by continuing in office with full knowledge of the facts. But here
the force of the convention is even weaker. One can hardly expect a

68. Attorney-General v. Jonathan Cape Ltd and others, Attorney-General v. Times

Newspapers Ltd [1976] Q.B. 752. The report of the case also provides fascinating details
about the vetting procedure and the role of the Secretary to the Cabinet in it, on which
also see Cmnd 5104 (1972), vol. 3, pp. 330-32.
69. For the sequel see the Radcliffe Report on Ministerial Memoirs, Cmnd
6386
(1976), which, among other things, recommended that fifteen years should elapse
before certain types of material should be published by former Ministers. The Report
was accepted by the Prime Minister.

170 The Executive

Minister to accept the same degree of responsibility for a decision in
which he had no opportunity to participate as for a decision where he had
such an opportunity.
(e) For this reason the ex post facto responsibility of non-Cabinet Ministers

for Cabinet decisions is not at all clear-cut, unless the Minister concerned
was a member of a Cabinet committee which took or recommended the
actual decision. Criticism of a Cabinet decision by the Minister after his
departure from office may be condoned, if he learned of it only when
Cabinet minutes were circulated to him; it ought to be excused if the
decision was never brought to his notice at all.

4. Nevertheless, a non-Cabinet Minister will not be allowed to express

public disagreement with government policy and remain in office, unless

it expedient for the Prime Minister to overlook the transgression; for a

is

transgression it is, notwithstanding the too often repeated, and too little
analysed, assertion that collective responsibility applies only to members
of the Cabinet. The practice followed in Attlee’s Government after 1945
was instructive. The Government Chief Whip in the House of Lords
described the Government handling of a dock labour dispute as ‘absolutely
crazy’; out he went. The Parliamentary Secretary to the Ministry of
Agriculture did not survive his public criticism of the Government’s
‘feather-bedding’ of farmers. And out went a group of parliamentary
private secretaries (not even Ministers, but unpaid aides to individual
Ministers) who failed to support the Government in an important division
on the Ireland Bill which recognized {inter alia) the continued partition of
Ireland.Here again the importance of an individual Prime Minister’s style
70
of governing is the most material fact.
5. Just as Ministers are expected to be loyal to their colleagues, so they
can reasonably claim to be entitled to the loyalty of their colleagues if
they run into public criticism in implementing agreed Cabinet policies. If
they implement them badly, or if they incur criticism as a result of purely
departmental failings or indications of personal ineptitude, they will not
have any corresponding claim to corporate solidarity. In 1935, the Foreign
Secretary, Sir Samuel Hoare, exceeded his mandate by concurring in an
agreement that would have given the Italian invaders of Abyssinia a slice
of that country. The Cabinet could have repudiated Hoare but decided''
to stand by him. When the terms of the agreement were published, a
national outcry arose. In an attempt to retrieve its reputation, the Cabinet

70. In 1969 Dr Jeremy Bray, a junior Minister, wished to publish a critical study of
the use of technology in government, drawing on his experience in office. The Prime
Minister refused to permit him to continue in office if he published. Dr Bray resigned.
His book ( Decision in Government ) was published in 1970.

Cabinet and Prime Minister t /I

 71
then insisted on Hoare’s resignation In the circumstances this was a
.

clear breach of convention. Hoare was duly rewarded for allowing himself
to be sacrificed for the national good he was given another, not Quite so
i

exalted, Cabinet post a few months later.

71. See Middlemas and Barnes, Baldwin , ch. 31 (‘The Hoare-Lava IPact’).
On almost
every other matter the authors show great sympathy with Baldwin.

172 The Executive

Chapter 7
Ministers, Departments
and Civil Servants

Central government
Ministers and Departments

In February 1977 there were twenty-three Cabinet Ministers and twenty-

eight full Ministers, as well as the four Law Officers of the Crown, who
were not members of the Cabinet. In addition, there were over fifty junior
1
Ministers - parliamentary under-secretaries of state, parliamentary
2
secretaries, financial secretaries, Government whips, and the like. In
short, the Ministry numbered over one hundred. A large majority of those
full Ministers who sat in the Commons had unpaid backbench M.P.s as

their parliamentary private secretaries. All but eight of the senior Ministers
were members of the Commons. About a fifth of the membership of the
House of Commons consisted of members of the Government or M.P.s
closely associated with the work of Ministers, though the maximum
number of holders of paid ministerial offices, who may sit and vote in the
3
House, is fixed by statute at ninety-five.
Yet in 1914, when the Government had already begun to assume re-
sponsibility for providing minimum standards of social welfare, the
number of senior ministerial offices, excluding the Law Officers, was only
twenty-one. The big increase since that time is attributable to a large
expansion in the functions and activity of central government.
Of the ministerial offices at the outbreak of the First World War, some
had disappeared well before 1977. Gone were the Secretaries of State for
India, for the Colonies, and for War, and the First Lord of the Admiralty.
There was no longer any call for a separate Department to deal with
Indian affairs; the Colonial Office had been merged with the Common-
1. If the Minister in charge of a Department is a Secretary of State.
2. Government whips have various designations. The Government Chief Whip
in the House of Commons is the Parliamentary Secretary to the Treasury. Other
Government whips in the Commons hold nominal offices in the Royal Household or
are styled Junior Lords of the Treasury or merely Assistant Whips. In the Lords all
Government whips hold nominal offices connected with the Royal Household.
3. House of Commons Disqualification Act 1975, s. 2(1). The maximum numbers of
holders of various classes of political offices to whom salaries may be paid are also
fixed by statute; Ministerialand other Salaries Act 1975, s. 1 and Sched. 1.

Ministers, Departments and Civil Servants 173

 wealth Office (the successor in title to the Dominions Office, 1924-47) in
1966, and the latter with the Foreign Office, under a single Secretary of
State, in 1968; the War Office, the Admiralty and the Air Ministry dis-
appeared in 1964, and instead there was an integrated Ministry of Defence
under a Secretary of State supported by Ministers of State and parlia-
mentary under-secretaries. Some ministerial offices in 1914 had survived
under their then existing designations (Prime Minister, Lord Chancellor,
Chancellor of the Exchequer, Secretary of State for the Home Depart-
ment, Lord President of the Council, Lord Privy Seal, Chancellor of the
Duchy of Lancaster, Paymaster General) and some had been renamed.
Thus, the Secretary for Scotland had become a Secretary of State, the
Secretary of State for Foreign Affairs was Secretary of State for Foreign
and Commonwealth Affairs, the President of the Local Government
Board had become the Secretary of State for the Environment, 4 the
President of the Board of Education was the Secretary of State for Edu-
cation and Science, the President of the Board of Agriculture and Fisheries
was the Minister of Agriculture, Fisheries and Food and the Postmaster
General was the Minister of Posts and Telecommunications. 5 The office of
Chief Secretary to the Lord Lieutenants of Ireland had lapsed long before,
but in 1972 the office of Secretary of State for Northern Ireland was
created.
The Cabinet in February 1977 consisted of the following Ministers:
Prime Minister, First Lord of the Treasury and Minister for the Civil
Service; Lord President of the Council and Leader of the House of
Commons; Lord Chancellor; Secretary of State for the Home Depart-
ment; Chancellor of the Exchequer; Secretary of State for Foreign and
Commonwealth Affairs; Secretary of State for Prices and Consumer Pro-'
tection; Secretary of State for Energy; Secretary of State for Industry;
Secretary of State for the Environment; Secretary of State for Defence;
Secretary of State for Scotland; Secretary of State for Wales; Secretary of

4. In the years between, most of the functions of the Local Government Board had
been transferred to the Ministry of Health; the Ministry of Town and Country
'
Planning .took over most of the functions of this Ministry during the Second World
War, and in 1951 became first the Ministry of Local Government and Planning and
then the Ministry of Housing and Local Government. The Ministry of Health was later
merged into the Department of Health and Social Security under a Secretary of State
for Social Services. In October 1969, the Minister of Housing and Local Government
ceased to be a member of the Cabinet and, with the Minister of Transport, was sub-
ordinated to a new Secretary of State for Local Government and Regional Planning,
but the Ministry retained its identity. In 1970 the Department of the Environment was
created and the pattern of Ministers was recast: see note 6.
5. A post subsequently abolished: S.I. 1974, No. 691. The Secretary of State for
Industry now has responsibility for the Post Office, and the Home Secretary a very
limited ministerial responsibility for broadcasting.

174 The Executive

State for Northern Ireland; Minister of Agriculture, Fisheries and Food;
Secretary of State for Employment ; Secretary of State for Trade Secretary ;

of State for Social Services; Chancellor of the Duchy of Lancaster; Lord

Privy Seal and Leader of the House of Lords; Secretary of State for Edu-
cation and Science and Paymaster-General; Secretary of State for Trans-
port; Minister for Social Security.
It cannot be said that there have been changes of high constitutional

importance machinery of central government during the last few

in the
years. The most interesting development has probably been the evolution
of five very large Departments - the Ministry of Defence; the Foreign and
Commonwealth Office; the Department of Health and Social Security;
the Department of the Environment; the Department of Trade and Indus-
try. In 1970 the powers formerly exercised by three separate Ministers
(Housing and Local Government Transport Public Building and Works)
; ;

6
were vested in a Secretary of State for the Environment. The Ministry of
Technology and the Board of Trade were absorbed by a Department of
Trade and Industry. On his return to office in 1974 Mr Wilson considered
that this Department was too large and divided it into Departments of
Trade and Industry, each with a Secretary of State in the Cabinet. And in
1976 Mr Callaghan decided that the Department of the Environment was
too cumbersome and created a Secretary of State for Transport, removing
transport responsibilities from Environment.
A second feature, of longer standing, is the large number of full Ministers
not in charge of Departments. This is attributable partly to the extensive
involvement of central government in economic and social affairs, and
partly to the need for having full Ministers available for the conduct of
discussions and negotiations outside England or with national interest
groups. In February 1977 twenty-four of these ‘deputy’ Ministers were
styled Ministers of State.

Departments and other agencies

Under the British system of government it is expected that there shall be a

Minister politically accountable for the more controversial acts of central
government agencies. Political accountability cannot readily be achieved
unless the activity is carried on by a Department or Office directly headed
7
by a Minister.

6. S.I. 1970, No. 1681.

7. Contrast the position in Sweden, where major central administrative functions
are vested in independent boards without a political head. See Report of the Fulton
Committee on the Civil Service (Cmnd 3638 (1968), vol. 1, pp. 138-40); Nils Berlitz,
Elements of Nordic Public Law.

Ministers, Departments and Civil Servants 175

 This general proposition needs to be qualified. Although the prospects
for taking major government activities ‘out of politics’ are limited, the
allocation of governmental functions to largely autonomous bodies has
become an important feature of public administration in Britain today.
None of the nationalized industries is now run by a government Depart-
ment, though Ministers retain a restricted range of powers and duties in
relation to them 8 Then there are miscellaneous other bodies performing
.

what can broadly be described as functions of central government but

lying outside the reach of detailed ministerial control. Most of them are
statutory creations, but a few are non-statutory; some are incorporated,
some are not; their sources of revenue are various; none is headed by civil
servants, but some are staffed by them; some have executive powers, some
are merely advisory, some are both; there is no common pattern. Their
powers may involve the provision of a public service (for example, the
British Broadcasting Corporation, the Commonwealth War Graves Com-
mission, the Forestry Commission, the National Museums and Art
Galleries), the regulation or management of a public service (for example,
the Independent Broadcasting Authority, the Countryside Commission),
or the regulation or promotion of private and public activity (for example,
the Civil Aviation Authority, the Commission for Racial Equality, the
Development Commission, the Arts Council, the various agricultural and
horticultural marketing boards, the Advisory, Conciliation and Arbitra-
tion Service, the National Research Development Corporation, the British
Tourist Authority). The functions of the British Council, which is not a
government Department — its officers and servants are not civil servants —
range over all these fields and are also advisory.
Then there is an assortment of bodies staffed mainly or entirely by civil
servants but without any ministerial head, though a Minister is answerable
in Parliament for some or all of their activities 9 They have been kept at
,

arm’s length from the principal Departments for a variety of reasons:

because they perform specialized functions which are not likely to be
politically controversial; because some of these functions ought not to be
the subject of political controversy (for example, because they are judicial
or analogous to the judicial); or because the organ was originally created

- See ch. 9.
8.
Thus, the Chancellor of the Exchequer answers a question in the House of Commons
9.
in connection with Her Majesty’s Stationery Office, the Central Office of Information,
the Treasury Solicitor, the Department of the Government Actuary, the Royal Mint
and the National Debt Office; the Meteorological Office is answered for by the Secre-
tary of State for Defence, the General Register Office by the Secretary of State for
Social Services; the Secretary of State for the Environment answers for the Ordnance
Survey. The Lord Chancellor answers in the Lords for the Land Registry and the
Public Record Office.

176 The {Executive

outside the framework of a political Department and there has never been
a sufficiently strong reason for bringing Some are so closely
it within one.
associated with a political Department that they are in effect sub-depart-
ments, for example, the Board of Inland Revenue, the Board of Customs
and Excise, the Export Credits Guarantee Department, and perhaps the
10
Intervention Board for Agricultural Produce the Government Actuary’s
;

Department, the Royal Mint, the National Debt Office, and the Treasury
Solicitor’s Office. Others, to which a separate vote may be allocated in the
Civil Estimates 11 are more loosely associated with political Departments -
,

for example, the Central Office of Information,Her Majesty’s Stationery

Office, theCharity Commission, the Crown Estate Office, the Registry of
Friendly Societies, the Public Works Loan Board, the Land Registry, the
Ordnance Survey, the Meteorological Office, the Public Record Office, the
Registrar General’s Office.
Whether every one of the bodies listed in the latter group is properly to
be described as a government Department is questionable. There is no
recognized definition of a government Department ; normally it is under-
stood to mean a central government body staffed by civil servants and
receiving its funds directly out of moneys provided by Parliament , 12 but
anomalies abound; the ‘rich Byzantine structure 13 of British central
’

government is nowhere more apparent than in these twilight zones. For

instance, the Exchequer and Audit Department is headed by the con-
spicuously independent Comptroller and Auditor-General; perhaps this
Department, like the Office of the Parliamentary Commissioner for
Administration, ought not to be regarded as a government Department
at all but should be placed in a spacious compound reserved for watchdogs.
Is the Supplementary Benefits Commission a government Department or
sub-department? It is a body corporate staffed by civil servants and is very
14
closely linked with the Department of Health and Social Security , but its

10. Established to operate the EEC’s common agricultural policy in the United
Kingdom (European Communities Act 1972, s. 6).

11. This feature is, however, inconclusive of status. For example, there is a separate
vote for the British Council.
12. W. J. M. Mackenzie and J. W. Grove, Central Administration in Britain , pp.
183-4; see also Sir Ivor Jennings* Cabinet Government (3rd edn), ch. 4. Schedule 2 to
the Parliamentary Commissioner Act 1967 lists government Departments and other
authorities subject to investigation, without distinguishing the one group from the
other.
13. Brian Chapman, British Government Observed p. 18. ,

14. See Ministry of Social Security Act 1966, ss. 2, 3 and First Schedule; National
Assistance Act 1948 (repd); D. N. Chester and F. M. G. Willson, The Organisation of
British Central Government, 1914-1964 pp. 16-17, 173-4; Jennings, Cabinet Govern-
,

ment (3rd edn), pp. 92, 102-3. The constitutional position of the Development Com-
mission, a promotional body created in 1909 to assist in rural development, is not

Ministers, Departments and Civil Servants 177

members are not civil servants, and the Secretary of State has no power to
control and is not responsible to Parliament for its decisions in individual
cases. Probably, therefore, the Commission should be classified as a semi-
autonomous public corporation.
The Metrication Board, the National Economic Development Council
and the Development Commission are undoubtedly instruments of central
government policy, but their functions are advisory, their membership is
partly or wholly non-official and they would not ordinarily be thought of
as government Departments. The University Grants Committee, though
sometimes described as a government Department, is an advisory and
allocative body, enjoying a very substantial degree of independence as a
buffer between the Department of Education and Science and the Treasury,
on the one side, and the universities on the other; it exists because of
government policy, but is not a formal instrument of government. The Law
Commissions also owe their existence to an act of policy; but their chair-
men are superior judges and their members, though salaried, are entirely
independent of the Government, and their functions are also advisory;
probably they should no more be regarded as government Departments
than the Council on Tribunals.
Government Departments dealing with domestic affairs make use of a
great number of standing advisory committees and councils composed of
outside experts or representatives of interest groups. (The ‘corporatist’
principle, under which positive government is qualified by the deference
paid to powerful organized private bodies, is apparent in many areas of
public activity - for example, in the composition of the economic develop-
15

ment councils, other promotional bodies, and above all in the agricultural
marketing boards and central regulatory bodies controlling the profes-
sions.) Occasionally, the functions of such a committee (for example, the
National Insurance Advisory Committee) are prescribed by statute; usually
the committee rests on a less formal basis. At a more exalted level, there
16
are the advisory councils concerned with government-sponsored research.
In 1977 there were Medical, Agricultural, Science, Social Science and
Natural Environment Research Councils. A
full description of the

machinery of central government would require an account of the func-

tions exercised by these multifarious ancillary bodies.

altogether dissimilar, and it has a separate vote in the Civil Estimates; but its functions
are to advise the Treasury in making grants; though the officers of the Commission
are civil servants, its members are unpaid non-officials; clearly this is not a govern-
ment Department.
15. cf. Andrew Shonfield, Modern Capitalism , ch. 6 and pp. 160-63, 231-3.
16. cf. Science and Technology Act 1965.

178 The Executive

Matters historical and legal

Of the modern few are traceable to the Tudor period

ministerial offices, a
and even The office of Lord Chancellor was primarily judicial in
earlier.
its origins; Wolsey was probably the last Lord Chancellor to be the

highest officer of State, but today the Lord Chancellor remains a prominent
member of the Cabinet as well as head of the Judiciary. The Lord President
of the Council has survived the atrophy of the Privy Council as a political
institution and is now invariably one of the senior members of the Cabinet.
The modest status of the Chancellor of the Duchy of Lancaster has been
enhanced; latterlyhe has been the Minister for European Community
economic adviser to the Prime Minister. The Lord Privy
affairs, later still

Seal, originally the custodian of a seal which had to be produced before the
Great Seal of the Realm, in the custody of the Lord Chancellor, could be
issued, is a Minister without a Department. A more interesting phenom-
enon is the office of Secretary of State, which developed from a secretarial
office in the royal household and became, in the seventeenth century, an
important ministerial post. In Charles II’s time there were two Secretaries
of State; by 1784 there were three; the numbers increased as the functions
of government extended and became more complex, and in 1977 there
were fifteen. 17 Their individual responsibilities are seldom prescribed by
statute, and indeed where powers and duties are conferred by legislation on
‘a’ or ‘the’ Secretary of State, the function could, as a matter of strict law,
be exercised by any of the Secretaries of State unless one is specifically
designated by the Act or Order.
The office of Chancellor of the Exchequer is less ancient; the Lord
High Treasurer 18 was a high officer of State in Tudor times and before,
but the office was put into commission and discharged by a board com-
posed of Lords Commissioners of the Treasury in 1714. The Board never
meets, but the First Lord of the Treasury is now invariably the Prime
Minister, and the Second Lord, in charge of the Treasury, the principal
Department of State, is the Chancellor of the Exchequer; the Junior Lords
sign formal Treasury warrants, but their main function is to act as Govern-
ment whips in the Commons. Several of the surviving medieval offices of
the Royal Household are occupied by Government whips in the Lords.
The existence of some ministerial offices (for example, Lord Chancellor,
Secretary of State) is derived from the prerogative, but statutory functions
can be assigned to a prerogative office-holder. The majority of ministerial
offices have been established by legislation. The Minister is created a

17. The maximum number cannot, in practice, exceed twenty-one: Ministerial and
other Salaries Act 1975, Schcd. 1, Part V,
18. Mackenzie and Grove, op. cit., pp. 167-70.

Ministers, Departments and Civil Servants 179

corporation sole, given a seal of office and entrusted with a loosely defined
range of functions which can be supplemented by other statutes and
statutory instruments. In general, legislation recognizes the Minister, not
his Department; and acts done by departmental officials will be per-
formed in the Minister’sname. Under the Ministers of the Crown Act
1975, functions may
be transferred by Order in Council from one Minister
to another, the designations of Ministers may be altered, and Ministers and
their Departments may be similarly wound up. In order to create a minis-
terial office with entirely new executive functions, an Act of Parliament is

required unless the office is that of a Secretary of State. All Ministers hold
office during Her Majesty’s pleasure and are removable, by convention, on
the advice of the Prime Minister.
Within the general framework of the principle that a Minister must
not allow a conflict to develop between his public responsibilities and his
private interests, detailed rules and criteria had been laid down by Prime
Ministers limiting the permissible range of private activities of members
of a Government. 19 For example, Ministers must not hold directorships
in public companies or engage in speculative investments in respect of
which information acquired in their official capacities might be beneficial;
though they are not required to dispose of all private shareholdings.
Association with non-profit-making organizations may also be incom-
patible with the discharge of ministerial duties. The principles are flexible
enough to accommodate special cases when it appears to the Prime
Minister expedient to do so. When Mr Frank Cousins became Minister of
Technology in 1964 he was allowed to retain the office of General Sec-
retary of the Transport and General Workers’ Union on indefinite leave;
on his resignation from ministerial office in 1966 he resumed his activities
as union secretary.

The civil service

A civil servant a Crown servant (other than the holder of a political or
is

judicial office or a member of the armed forces) appointed directly or

indirectly by the Crown, and paid wholly out of funds provided by Parlia-
ment and employed in a Department of government. The definition of a
civil servant has not yet given rise to serious legal problems; the meaning

of the term ‘Crown servant’ (which may include bodies corporate) has
20
posed bigger difficulties.

It is not, of course, realistic to think of the civil service only as a

19. Jennings, Cabinet Government (3rd edn), pp. 106-110. See also p. 52.
20. See pp. 120-21, 213, 603.

1 80 The Executive
 body of number of decisions, the
advisers to Ministers. First, a great
responsibility for taking committed by law to Ministers, are in
which is

fact taken by civil servants in the Minister’s name without reference to

the Minister personally 21 Unless the class of decision is so important that
.

nothing less than the Minister’s personal attention is appropriate,

the courts will accept the propriety of such a procedure even though
the Minister has not explicitly authorized the civil servant to make the
decisions 22 However, in immigration law special legal consequences are
.

attached to decisions taken by the Secretary of State in person 23 Secondly, .

some statutes vest powers of decision directly in named classes of civil

servants (for example, customs and excise officers, inspectors at town
planning inquiries). Thirdly, in some Departments large questions of
policy will in practice be decided by civil servants with the Minister’s
formal concurrence. A combination of thrustful and strong-minded senior
civil servants, complex issues demanding both a substantial body of factual

knowledge and an appreciation of the personal qualities of persons with

whom the Department has to deal, and an inexperienced, indolent, ill-
endowed or indecisive Minister, will sometimes lead to a situation in
which a Minister dwindles to a political mouthpiece of his civil servants.
A limited range of personal experience suggests that such a situation is
less common than is often supposed. Civil servants may seek to influence
a ministerial decision in a particular direction by their methods of selecting
and summarizing facts, stating the problems and presenting alternative
courses of action to the Minister, and they are usually expert in putting to
a Minister the objections against a decision that he may wish to take; but
they are aware of the need for preserving political neutrality by conscious
self-restraint, and the constitutional importance of having an effective
24
political head of their Department Ministers, if only for reasons of self-
.

respect and personal ambition, know that they must be able to present
departmental decisions persuasively to their colleagues, to Parliament, to
the public at large and to any groups with whom they have been nego-
tiating. To observe the treatment meted out by a not especially assertive
Minister to a semi-political speech drafted for him by one of his senior
policy advisers can be a most instructive experience.

21. A point made spectacularly but perhaps over-emphatically by the judicial tri-
bunal of inquiry into the Vehicle & General Insurance Co. affair: H.C. 133 (1971-2);
see p. 167.
22. Carltona Ltd v. Commissioners of Works [1943] 2 All E.R. 560; Lewisham
Borough v. Roberts [1949] 2 K.B.608 at 629; R. v. Skinner [1968] 2 Q.B. 700.
23. Immigration Act 1971, ss. 13(5), 14(3), 15(4); seech. 19.
24. See also Crossman, Inside View, pp. 60-71, and Diaries of a Cabinet Minister,
vols. 1 and 2, passim.

Ministers, Departments and Givi! Servants 181

 Political activities of civil servants

Overt political partisanship cannot be reconciled wkn .c.c principle of

official impartiality. Civil servants are disqualified by statute for mem-
bership of the House of Commons; and a civil servant who wishes to
stand at a parliamentary election is obliged by regulations of the service
to resign his post before announcing himself as a candidate or prospective
candidate, though in certain cases 25 he will be entitled to reinstatement if
he is not elected or after he has ceased to be a member of the House. By

pursuing logic to a facile conclusion, one will rapidly decide that all civil
servants ought to be denied every form of political activity except that of
casting a vote at an But the reasons of public policy that impose
election.
the utmost discretion on servants closely associated with the work of
civil

their Minister are largely irrelevant to the van driver, the worker in a Royal
Ordnance Factory, the porter and the junior clerk. In order to allow civil
servants a reasonable measure of freedom of political expression, they
were divided by a Treasury circular into three main groups 26 The ‘politic- .

ally restricted’ were senior members of the service; they were debarred
from national political activities (including the public expression of views
on matters of national political policy), but were entitled to take part, with
the permission of their Department, in local political activities, provided
that they acted ‘with moderation and discretion, particularly in matters
affecting their own Department ’. Secondly, there was a large intermediate
’
‘

group, consisting of clerical officers, typists, and persons charged with

technical and specialized responsibilities not involving questions of
political policy. Members of this group could be given permission by their
Department to take part in both national and local political activities;
permission was likely to be refused, however, to officers who came into
direct contact with members of the public in the course of participating in
discretionary decisions (for example, at employment exchanges or tax
offices) or who were closely associated, though in a subordinate capacity,
with Ministers and senior policy-makers. The remainder of the civil service,
and much the largest group, was politically unrestricted , 27 except in so far
as they had to observe the Official Secrets Acts, could not engage in

25. Those civil servants who are not in the ‘restricted’ or ‘intermediate* groups:
see below.
26. The rules are stated in The Civil Service , vol. 4, pp. 402-5 (Evidence submitted
to the Fulton Committee on the Civil Service: Report, Cmnd 3638 (1968)). See also
Wilson, op. cit., pp. 72-89. They followed broadly the guidelines indicated by the
Report of the Masterman Committee (Cmnd 7718 (1949)) which was appointed
following representations from the staff side of the civil service that a wider measure
of freedom of political activity ought to be allowed.
27. Subject to the rules about parliamentary candidature.

1 82 The Executive
 while on duty or in uniform or on official premises, and
political activity
c;,oacje measure of restraint so as to avoid embarrassing their
...

Ministers ana Deparcnien:s. 2i

Private interests of civil servants 29

There is no precisely formulated code of conduct governing the private

economic activities of civil servants, but they must not allow a conflict to
develop between their public responsibilities and their private interests
as shareholders and investors. Fortunately, cases of corruption among
senior civil servants are exceedingly rare .
30
A certain amount of disquiet
has been caused by the frequency with which senior officers, upon their
retirement, are appointed to executive or advisory posts in commercial
and industrial firms with which they have conducted direct negotiations
while they were officials; but under rules of the service such offers of
appointment cannot be accepted within two years of rctiicmcnt except
31
with the consent of the Government .

Anonymity and secrecy

Government Departments have often been criticized for their disinclin-
ation to divulge interesting and useful information to members of the
public 32 The fiction that all departmental decisions were taken by the
.

Minister (who is alone politically answerable for them), coupled with a

deep-seated belief that any exposure of the processes of departmental
decision-making would tend to cause trouble and reduce administrative
efficiency, brought about a stale of affairs in which sccretivencss was
sometimes carried to absurd lengths. Twenty years ago the present writer
was precluded from publishing certain entirely innocuous material about

28. A
committee of inquiry was set up in 1976 to review the rules governing the
by civil servants in national and local party political activities: 911
active participation
H.C. Deb. 529 (written answers 19 May 1976).
29. See Chester and Wilson, op. cit., pp. 117-19.
30. But not unknown. In the wake of the ‘Poulson affair* a Royal Commission on
Standards of Conduct in Public Life was set up in 1974. In its report sweeping changes
in the law were recommended, including new statutory rules which would alfcct civil
servants. The Commission recorded that from 1966-76 seventeen civil servants had
been convicted on corruption charges. See further below pp. 383-4.
31. The Civil Service vol. 4, pp. 393-6.
,

32. For recent measured criticisms, see David Williams, Not in the Public Interest
(1965); Report of the Fulton Committee on the Civil Service, Cmnd 3638 (1968), ch. 8.
For the Labour Government’s response to the Fulton Committee's criticisms, see
Information and the Public Interest (Cmnd 4089 (1969)). For review of section 2 of the
Official Secrets Act 1911, see ch. 21.

Ministers, Departments and Civil Servants 183

 the manner in which a Department disposed of appeals affecting indi-
vidual interests; the information was divulged to the Franks Committee
on Administrative Tribunals and Enquiries 33 a few years later. Inspectors’
reports to Ministers on housing and town planning inquiries were not
disclosed - and the courts upheld the departmental view that natural
justice did not require their disclosure 34
- till 1958. 35 The Franks Com-
mittee’s emphasis on the need for openness in the procedures for taking
decisions on matters directly impinging on individual rights led to a
healthy ventilation of the corridors of Whitehall which has enhanced
public confidence in the processes followed. The prevailing image of
central administration is less monolithic. And it is fair to say that, for
many years past, senior civil servants have been more accessible for in-
formal interviews than their bureaucratic counterparts in a number of
other countries (provided, at least, that the interviewer was not proposing
to publish ‘confidential’ information); and that formal and informal
consultations between officials and representatives of organized interest
groups has long been a feature of central administration in Britain.
Criticism of departmental secrecy has recently been concentrated on
nine main issues;
4

1. a Minister did not personally participate in a decision, which civil

If
servant made it in his name? It may be important to know this, because
of the possibility of making informal representations with a view to secur-
ing review of a decision within the Department. Sometimes the official
identifies himself; sometimes he does not, either because he attributes the
decision to the Minister or because a decision made by an unnamed
official is communicated in a letter signed by another. Seldom will the

national interest be prejudiced by more exact identification. Recently the

Parliamentary Commissioner for Administration, who has access to
departmental files and can interrogate civil servants, has revealed some of
the carnal facts that lie beneath the veil.

2. What criteria does a Department adopt in exercising discretionary

powers affecting individual interests? Departmental practice in disclosing
the principles applied has varied; the Inland Revenue has been particularly
helpful to prospective taxpayers, while lips in the Home Office were firmly
sealed even on general considerations affecting the immigration and
deportation of aliens. But the Home Office now publishes not only the
immigration rules but also instructions to immigration officers. The
Department of the Environment issues Development Control Policy

33. Cmnd 218 (1957).

*
34. Local Government Board v. Arlidge [1915] A.C. 120.
35. See further, ch. 25.

1 84 The Executive
 Notes; and so on. There is still a great deal of room for improve-
ment. 36
3. What were the reasons for the decisions ? It is often difficult and usually

inconvenient to give adequate reasons for one’s decisions. It is particularly

difficult to do so if the decision was not purely personal but was in effect
a collective decision resulting from discussions among colleagues. Courts
can nevertheless be required to give reasons for judicial decisions and
Ministers reasons for political decisions. Civil servants still tend to put up
a stiff resistance to the idea that they ought to give reasons for their
decisions, even when those decisions have a direct impact on individual
rights; and they justify their inhibitions all the more readily to themselves
inasmuch as the decisions are usually made in the Minister’s name and
may indeed be collegiate decisions. But reluctance is slowly being over-
come by statutes imposing on Ministers a duty to give reasons for certain
types of decisions, usually those made after a formal hearing or inquiry. 37

4. By what procedure was a decision reached ? Rarely can

it be justifiable

to withhold general information about settled departmental procedures

from the public, except on grounds of national security. But this type of
information is not made systematically available: unless the procedure is
prescribed by legislation, it emerges through disclosures to interested
parties, evidence given to parliamentary scrutinizing committees and other
committees of inquiry, and investigations and reports by the Parlia-
mentary Commissioner for Administration. Only occasionally does a
Department proffer information about its internal procedures on its own
initiative.

5. What are the facts on the basis of which departmental decisions are

taken? Of late there has been a great improvement in the dissemination

of statistical and general factual information by Departments and other
organs of the central government. 38 But Departments still tend to be
unduly reticent about the disclosure of the nature and contents (and even
sometimes the very existence) of particular items of information, par-
ticularly before a decision has been taken; and premature and unauthor-
39
ized disclosure is apt to evoke over-reaction.

6. What are the Government’s plans and forecasts ? Here again there has
For a penetrating analysis of this type of problem in the United States, see
36.
Kenneth Culp Davis, Discretionary Justice.
37. See, for example, Tribunals and Inquiries Act 1971, s. 12.
38. See the interim progress report, Developments on Fulton issued by the Civil
,

Service Department early in 1969. cf. the strictures of the Fulton Committee on
excessive secrecy in the administrative process (Cmnd 3638 (1968), pp. 91-2).
39. cf. the initial Government reaction late in 1972 to a disclosure in the Sunday
Times of a long-term plan for reducing railway passenger services.

Ministers, Departments and Civil Servants 1§5

been a marked improvement in the supply of published information,
especially in economic affairs; and the Government publishes occasional
Green Papers 40 putting forward tentative proposals for public discussion
before, they have finally crystallized. Clearly Departments cannot be
expected to disclose all their provisional plans in advance, any more than
they can be expected to reveal all their sources of confidential information.
But complaints about the slowness of progress towards a system of more
‘open government’ persist.

7. Should not civilservants be readier to explain departmental policies?

Once again it is possible to say that the sphinx now gives tongue more freely,
least because of a civil servant’s
though utterances tend to be guarded, not
apprehension of committing himself in a way that would embarrass his
Minister. The Fulton Committee has urged that this development should
be carried farther, and that Ministers (who frequently lack detailed
knowledge of what is going on in their Departments) should not be
41
regarded as the only proper departmental spokesmen. Yet there are big
42
risks involved in individualizing a government Department in this way.

8.Should not civil servants be prepared to justify in public the merits of

departmental policies? The lines between explanation and justification,
between departmental and political policies, may be thin; and the Fulton
Committee was aware of the danger of erasing them. Governments come
and go. To encourage permanent civil servants to play the political partisan
would damage both service morale and public confidence in the service.
Moreover, it would be hard to impose upon a civil servant a duty to
43
justify (as distinct from explain) his Minister’s policy in public controversy
while denying him any right to express his personal misgivings; yet the
open expression of doubt and dissent would undermine relations between
Ministers and their permanent advisers. It is surely right that the rules
governing the conduct of statutory inquiries in respect of planning appeals
and compulsory purchase orders should preclude questions being put to

40. For example, on value added tax, local government finance, constitutional
reform in Northern Ireland, direct elections to the European Assembly.
41. Cmnd 3638 (1968), pp. 93-4.
42. cf. Henry Parris, Constitutional Bureaucracy (1969), ch. 10.
43. Senior civil servants are in fact sometimes called upon to explain (and defend)
departmental policies before parliamentary and departmental select committees, royal
commissions and so on, and to submit to close interrogation. Recent examples are the
proceedings of the House of Commons Select Committee on the Parliamentary
Commissioner for Administration, and the two Franks Committees. One gleans a lot
of interesting information from reading the Minutes of the Evidence, and no harm is
done provided that the questioner and the questioned show due discretion and that the
departmental policy is not one that is the Minister’s idiosyncratic policy or one
dictated by party politics.

1 86 The Executive
 civil servants with a view to eliciting their opinions on the merits of
Government policies.

9. Isnot the public entitled to know what advice was given to a Minister
by his civil servants on matters of policy, and who gave particular advice?
In general, the answer to this question must be in the negative. Regular
public exposure of advice and opinions tendered by civil servants at the
formative stages of policy would detract from the efficiency of the service
by restraining frank and forthright expressions of points of view. The
loyalty of civil servants in implementing departmental decisions, once a
decision has been taken, is well known. What is not well known is the
vigour with which senior civil servants contest one another’s views, and
indeed the views of the Minister, before the decision has been finally
arrived at.

Regulation organization and structure

,

The civil service is regulated primarily under the royal prerogative.

Formal prerogative Orders in Council relating to the civil service are,
however, few. Regulations, minutes and circulars issued formerly by the
44
Treasury, and since 1968 by the Civil Service Department, have been the
main substance of the law and custom of the civil service; they are supple-
mented by a few statutes (for example, the Superannuation Acts) and
judicial decisions (for example, on civil liability, tenure of office). The
Permanent Secretary of the Civil Service Department is also Head of the
Home Civil Service. There are separate Heads of the Diplomatic Service
(the Permanent Under-Secretary of State to the Foreign and Common-
wealth Office) and of the Scientific Civil Service (the Government’s Chief
Scientific Adviser, a member of the Cabinet Office). The Civil Service
Commissioners have been placed within the Civil Service Department;
they are mainly responsible for the recruitment and selection of civil
servants by competitive examination and interview. Departments also
recruit their own specialist and temporary staff by other methods; pro-
motions within the service, except at the very highest levels, are matters
reserved for individual Departments. Top appointments are made by the
Prime Minister on the recommendation of the Head of the Home Civil
Service, who is assisted by a senior appointments committee composed of
permanent secretaries and senior professional officers. 45
The elaborate procedural and substantive rules relating to conditions of
44. The Minister for the Civil Service Order 1968 (S.l. No. 1656) made under
1968,
the Ministers of the Crown (Transfer of Functions) Act 1946 (now the Ministers of
the Crown Act 1975). This was a statutory transfer of powers derived mainly from the
prerogative.
45. Developments on Fulton (Civil Service National Whitley Council, 1969), para. 74.

Ministers, Departments and Civil Servants 187

I
service, promotions and tenure have been evolved to a large extent by
means of collective agreements reached by the system of National and
Departmental Whitley Councils, at which representatives of the ‘official’
side of the civil service (senior officials) negotiate and consult with repre-
sentatives of the ‘staff’ side. If agreement cannot be reached, the matter
may be committed to an arbitral body or the Government may take a
unilateral decision. In any event, the Whitley system is technically only
46
advisory. The .rules governing ‘established’ (or permanent) civil ser-
vants are promulgated by the Civil Service Department and are assembled
in an official (but inaccessible) publication, Estacode.
Since the Report of the Fulton Committee, the structure and organ-
ization of the service have been under detailed internal scrutiny, and a
full survey would be beyond the bounds of the present book. Briefly, in
1970 a Department of State had a permanent secretary (or permanent
under-secretary of state) who was the Minister’s principal official adviser,
deputy secretaries, under-secretaries, assistant secretaries, principals and
assistant principals.These were the members of the administrative class,
the gifted generalists or all-rounders, recruited in the main by competitive
47
examination and interview from young Oxbridge arts graduates. Some
Ministers also introduced a small number of temporary senior advisers
from outside the service on a ^hort-term basis. There were other schemes
for the recruitment of older candidates at a senior level.
Beneath the administrative class there were a larger number of officers
in the executive class and a considerably larger number of clerical officers.
A Department would also have its specialists - legal advisers, scientists,
accountants, perhaps surveyors, engineers, architects and doctors, and
supporting ancillary personnel. There were, in addition, various special
classes - for example, inspectors of taxes.
The civil service was thus divided both horizontally and vertically. The
Fulton Committee proposed reconstruction and simplification. In par-
ticular, the Committee severely criticized the cult of the amateur generalist
in the administrative class, called for a higher degree of ‘professionalism’
in technical expertise and competence in business management and in
and urged that closer attention
social administration at the highest level,
be paid to organization and methods, forward planning and research,
46. See evidence submitted to the Fulton Committee, vol. 4, pp.
500-510. Some
matters are dealt with by direct negotiation with the various staff associations. See
further, B. A. Hepple and Paul O’Higgins, Public Employee Trade Unionism
in the

United Kingdom : The Legal Framework (1971); this was written before the Industrial
Relations Act 1971 (since repd).
47. Before the Northcote-Trevelyan Reforms in the second half of the nineteenth
‘

century (see Fulton Report, ch. 1 and Appendix 3), recruitment was mainly by
patronage.

188 Th6, Executive

advanced training of entrants, mobility between grades and secondment
to and from the service, and a diminution of the security of tenure enjoyed
at present by the less efficient members of the service.
Despite the intemperate wording of some of the Committee’s com-
ments, its recommendations gave impetus to change. 48 The Civil Service
Department was created soon afterwards. In 1970 a Civil Service College
for advanced training was opened. Within the service, separate grades
have been merged or grouped together; stratification has diminished,
promotions and transfers have been facilitated. Special arrangements
have been made for the compulsory retirement of the inefficient. Modem
methods of job analysis, personnel management, -planning and budgetary
accounting, bandied around by their abstruse initials, are all the rage. 49
The Heath Government also introduced a small top-level Central Policy
Review Staff, headed by a Labour peer and industrialist, to advise Minis-
ters on forward planning, the allocation of priorities and issues cutting
across departmental boundaries, such as the Concorde project, sponsored
research, the role of the City of London, and policy on energy, population
and the regions.
The remarkably high degree of security enjoyed by established civil
servants, surpassed only by the Judiciary, was not recognized by rules
applied in the courts. In the eyes of the common law, civil servants held
their offices at the pleasure of the Crown. Their could be vacated
offices
summarily atany time for any reason that Her Majesty thought fit.
The common-law rule that a civil servant has no right of recourse to the
courts for wrongful dismissal is reasonably clear. 50 But what is the basis
of the rule; and are there any exceptions to it? It has sometimes been said
that a civil servant enjoys a legal status but is not employed under a
contract. 51 Even if this is so, it would not preclude the officer from recover-
ing damages for wrongful dismissal, or, indeed, a declaration that he was
entitled to reinstatement. 52 And at least one decision of the House of Lords

48. See, for example, John Garrett, The Management of Government ; D. Keeling,
Management in Government Sir William Armstrong, Professionals and Professionalism
;

in the Civil Service R. G. S. Brown, The Administrative Process in Britain ; the following
;

publications by the Civil Service National Whitley Council: Developments on Fulton

Fulton: A Framework for the Future; Fulton: The Reshaping of the Civil Service ; The
Shape of the Post-Fulton Civil Service G. W. Jones, ‘The eclipse of Fulton*, New
Society, 17 August 1972.
49. See, for example, Peter Jay, ‘PESC, PAR and politics*, The Times, 3 January
1972.
50. See, for example, Shenton v. Smith [1895] A.C. 229 (P.C.); Terrell v. Secretary
of State for the Colonies [1953] 2 Q.B. 482. But see below on the statutory position.
51. See Leo Blair (1958) 21 Mod. L. Rev. 265, [1958] Public Law 32.
52. cf. Vine v. National Dock Labour Board [1957] A.C. 488 (dock labourers);
Ridge v. Baldwin [1964] A.C. 40 (chief constables).
i

Ministers, Departments and Civil Servants iov

 has rested unambiguously on the presupposition that the relationship
between civil servants and the Crown is contractual 53 .

Again, the fact that the power to appoint and regulate the conduct of
civil servants is derived from the royal prerogative is not inconsistent with

the existence of a contract of employment. The Crown can enter into

binding contracts (for example, for the supply of food) in the exercise of
its prerogative functions.
Yet, assuming that the relationship is contractual, it appears that the
right to dismiss at pleasure cannot be displaced by engagement for a fixed
period , 54 or by official circulars
55
or non-statutory regulations
56
laying
down a regular procedure to be followed before dismissal. It is indeed
doubtful whether any ostensibly contractual term inconsistent with the
power of the Crown to dismiss at pleasure (for example, a statement that
a Crown servant would be dismissible only ‘for cause ’, 57 or for inability
or misbehaviour) would be endorsed by a court, unless, of course, the
restriction on the Crown’s freedom to dispense with a servant at will had
been imposed by statute 58 Now, if the power to dismiss at pleasure were
.

to be construed as an ordinary implied term of a contract, it could be

displaced by an express term of a contractual engagement incompatible
59
with it . If it cannot be so displaced, this must be either because the
Crown is incapacitated from fettering its future executive discretion in
60
this way (so that an incompatible undertaking would simply be ultra
viresand void61 ) or because it is a special kind of implied t£rm, imported
by precedent and for reasons of public policy into all engagements with
the Crown irrespective of their wording. These rationalizations of the rule
are unconvincing and cast doubt on the content of the rule. Public policy
may indeed suggest that an unsuitable or redundant civil servant should be
dispensible at any time when the interests of the State so demand; but this

53. Sutton v. Att.-Gen. (1923) 39 T.L.R. 294. The point was not argued and the
precedent is therefore sub silentio ; but all the Law Lords assumed that the engagement
in question was contractual. See now Kodeeswaran v. Att.-Gen. of Ceylon [1970] A.C.
1111 (P.C.), supporting this view.
54. Dunn v. R. [1896] 1 Q.B. 116.
55. RodweU v. Thomas [1944] K.B. 596. But see Sutton v. Att.-Gen, (note 53); and
Blair [1958] Public Law at 43-6.
56. Riordan v. War Office [1959] 1 W.L.R. 1046.
57. Though cf. Reilly v. R. [1934] A.C. 176 at 179-80 (dicta): Robertson v. Minister
of Pensions [1949] 1 K.B. 227 at 231 (dictum).
58. As in Gould v. Stuart [1896] A.C. 575 (P.C.). See also below.
59. See dicta cited in note 57 above ; and see Sutton v. Att.-Gen. (1923) 39 T.L.R. 294.
60. cf. Rederiaktiebolaget Amphitrite v. R. [1921] 3 K.B. 500; pp. 601-2 below.
61. See Riordan's case [1959] 1 W.L.R. at 1053; Rodwell v. Thomas [1944] K.B. at
602.

130 The Executive

 merely means that a court of law ought not to award a declaration that a
dismissed civil servant is entitled to reinstatement; it does not imply that
he should be denied monetary compensation for wrongful dismissal.
The Industrial Relations Act 1971 made an important addition to the
law, which was strengthened by and is now contained in the Employment
Protection Act 1975. If a civil servant is unfairly dismissed an industrial
tribunal may order that he be re-instated or re-engaged, and that he receive
compensation. 62
The salaries of civil servants are determined by standing references to
arbitral bodies. There have been judicial dicta to the effect that a civil
servant has no legally enforceable right to his pay. 63 Even if this is a
correct statement of the common-law rule regarding future payments, it is
now clear that at common law a civil servant is entitled to recover any
part of his salary withheld from him in respect of the work he has already
done. 64
The superannuation of civil servants is regulated by statute, but before
1972 the wording of the legislation presupposed a lack of judicially en-
forceable entitlement to the rates of superannuation prescribed or indeed
to any pension at all. 65 Questions of law arising out of civil service super-
annuation schemes are now potentially justiciable. 66

Security procedures 67

The growth of peacetime espionage, particularly in connection with nuclear

research and technology, led to the adoption of special security measures
within the civil service in 1948. Following the defection of two senior
Foreign Service ollicials, Burgess and Maclean, to the Soviet Union, and
the conviction of some Crown servants, including George Blake, an

62. Sections 71-80. The concept of ‘unfair’ dismissal is related to non-observance

of the principles laiddown in the Code of Practice prepared by the Advisory, Concilia-
tion and Arbitration Service. A Minister may exclude a Crown employee from the
Protection of the Act on grounds of national security: s. 121(4).
63. Mulvenna v. Admiralty 1926 S.C. 842 at 859; Lucas v. Lucas [1943] P. 68 at 78
(criticized by D. W. Logan (1945) L.Q.R 240).
.

64. Kodeeswaran v. Att.-Gen. of Ceylon [1970] A.C. 1111, disapproving dicta to the
contrary effect and applying general principles.
65. Superannuation Act 1965, s. 79. Sec Nixon v. Atu-Gcn. [1931] A.C. 184.
66. Superannuation Act 1972, s. 2(6).
67. Harry Street, Freedom the Individual and the Law (4th edn),
, pp. 239-48; David
Williams, Not in the Public Interest chs. 3, 7-9; Wade and Phillips, Constitutional Law
,

(8th edn), ch. 40; Geoffrey Wilson, Cases and Materials on Constitutional and
Administrative Law 2nd edn, pp. 89-98; and two comparative studies, David
,
C.
Jackson (1957) 20 Mod L. Rev. 364, Mark R. Joolson [1963] Public Law 51,
.

Ministers, Departments and Civil Servants 191

important controller of British agents, 68 for espionage, committees were
appointed to investigate and report on security procedures. Their recom-
mendations 69 resulted in the introduction of new procedures. Typically,
all the new rules rest on a non-statutory basis.

The procedures have been applied to only a small proportion of civil

servants, holding positions where personal unreliability might give rise to
serious risks to national security.They have been more selective (though
not necessarily more efficacious) than those adopted in the United States;
and British civil servants have not had to endure the solemn silliness of
indiscriminate loyalty oaths.
In 1948 it was decided that civil servants with Communist or Fascist
affiliations should not be employed in work vital to the security of the
State. Where would be transferred to non-secret work.
practicable they
From a provisional decision by a Minister that an official ought to be
transferred or removed on security grounds, an appeal would lie to an
advisory tribunal, the ‘Three Advisers’, who would meet in private. In
1952 civil .servants employed on top secret work became subject to a
more rigorous form of scrutiny, known as ‘positive vetting’, extending to
general character defects; no reference to the Three Advisers would lie
from an executive decision in this context. High-level reports on security
measures, published in 1955 and 1962, 70 emphasized that personality or
behavioural defects or disorders, such as homosexual conduct, alcoholism
and drug addiction (which might render an official vulnerable to blackmail
or subject to financial temptation), as well as known political affiliations
or sympathies, were indicators of security risks; but precautionary
measures in such cases were left to departmental action. Security pro-
cedures were modified in 1957; and in 1964 a new, and almost inevitably
non-statutory, organ, the Security Commission, under the chairmanship
of a superior judge, was set up to investigate, at the Prime Minister’s
request, breaches of security in the public service, and to report and advise
71
generally on security arrangements.
Proceedings before the Three Advisers (who are normally retired civil
servants and whose findings are not binding on the Minister) do not con-
form to the standards of natural justice imposed on a judicial tribunal.

68. B. v. Blake [1962] 2 Q.B. 377. For his activities he was sentenced to three
consecutive terms of imprisonment of fourteen years each. He escaped from prison
to Eastern Europe in 1967, and was subsequently awarded the Order of Lenin.
69. Cmd 9715 (1955) (the Privy Councillors’ Report); Cmnd 1681 (1962) (the
Radcliffe Report). '

70. See above.

•
71. The other members of standing commission are judges and very senior
this
ex-members of the civil service and the armed forces*

192 The Executive

After the Minister has decided that a prima facie case has been made out -
there is no preliminary hearing 72 - particulars of the allegations are dis-
closed to the Advisers, but the civil servant will not be supplied with
details which would reveal the sources of the information against him.
The servant may appear in person, but he cannot be represented by a
civil

lawyer or anybody else; he is merely entitled to be accompanied by a

friend when he is presenting his opening statement. He may call witnesses
to testify to his character and record, but he is unable to cross-examine the
anonymous and The advice tendered by the tribunal
invisible informants.
to the Minister not revealed.
is

This procedure may well be ‘a travesty of justice as Englishmen are

accustomed to it ’. 73 The Franks Committee had insisted 74 that the pro-
ceedings of statutory administrative tribunals should be characterized by
‘openness, fairness and impartiality’; it is questionable whether any of
these criteria is met by the machinery outlined above, though it can be
assumed that Ministers and the Advisers do their best to act fairly. But to
speak of a travesty belittles the fact that even the most lenient security
programme must rest on a harsh assumption that measures injurious to :

possibly innocent persons will have to be taken on the basis of reasonable

suspicions, suspicions insufficient to justify a prosecution. The balance
will inevitably be delicate. We have no means of evaluating the soundness
of the decisions that have in fact been taken, or how much harm might be
done if the ‘defendant’ or the representative he would prefer to choose
were to be supplied with full particulars of the case against him and were
to be given the right to confront informants. It is worth mentioning that
in the first thirteen years of the special security programme, only twenty-
four civil servants were dismissed and twenty-four others were induced to
resign on security grounds, and eighty-three were transferred to non-secret
75
work . During the two World Wars, thousands of innocent and innocuous
persons were placed in preventive detention as a result of policy decisions
and excesses of executive zeal.
Security precautions extend beyond the civil service and the Atomic
76
Energy Authority Government contracts placed with private firms for
.

secret work include terms which have the effect of barring any employee

72. Though the civil servant may make written representations to the Minister.
73. Street, op. cit., p. 247.
74. Cmnd 218 (1957), p. 5.
75. Joelsbn [1963] Public Law at 56-7.
76. Under the Atomic Energy Authority Act 1954, the
the First Schedule to
Authority may
not terminate the employment of any of its employees on security
grounds without the consent of the Minister (now the Secretary of State for Energy).

Ministers, Departments and Civil Servants 193

 of the firm who is designated by the Minister as a security risk from having
access to secret matters. In 1956 I Cl dismissed their assistant solicitor

because the Government, on ostensibly flimsy grounds, refused to place

with them any further secret contract to which he would have access. Such
an employee is now able to have his case referred to the Three Advisers. 77

77. For non-statutory references of politically sensitive immigration ‘appeals* to the

Three Advisers, see ch. 19.

1 94 The Executive
 Chapter 8
Constitutional Position of
the Armed Forces

Structure and status 1

The armed forces are instruments of the central government, equipped,

disciplined and trained for the exercise of physical force in the interests of
the State. In a large number of new states, and in a few that are not so
new, the military servants of the State have recently become masters. No
constitutional or legal device can afford a guarantee against a military
take-over when the political structure is in a condition of decadence or
collapse. The British rules relating to the status of the armed forces pre-
suppose a set of public attitudes and assumptions towards the roles of the
and military powers within the State. The primacy of the civil power
civil

is a sociological as well as a constitutional fact. No British Government

has been overthrown by military force since 1688. No senior officer of the
regular armed forces has ever been Prime Minister except the Duke of
Wellington (1828-30, 1834), and he had long since retired from active
service.
The feudal levy, supplied by military tenants of the Crown, was abol-
ished in 1660. The pre-Norman fyrd a national levy, had been transformed
,

into the militia, and it was regulated by statute in 1661. But such was the
rancour aroused by James H’s use of troops that the Bill of Rights 1689
prohibited the raising or maintenance of a standing army within the realm
in time of peace without the consent of Parliament. Since a regular armed
force was necessary at that time, a Mutiny Act, giving the requisite parlia-
mentary authority, was passed but was limited to a year’s duration. Annual
Mutiny Acts were passed for nearly two hundred years. In 1881 an Army
Act was passed, embodying rules of military law which had previously
been embodied in the Mutiny Acts and articles of war. 2 When a separate
air force was created in 1 9 1 7, a similar Act was passed. These were kept alive
for periods of twelve months by Army and Air Force (Annual) Acts. In
1955 the Army and Air Force Acts were revised and consolidated, and
1. This chapter will not deal with the reserve forces (see Reserve Forces Act 1966)

or the auxiliary, territorial or women’s services.

2. Till the eighteenth century, articles of war for the governance of soldiers had been
issued only in time ol war.

Constitutional Position of the Armed Forces 1 95

I
the system of annual renewal was modified; instead of an annual Act of
Parliament (the debates on which provided the Opposition with a useful
opportunity for consuming legislative time) they would be renewed from
year to year by Orders in Council, which would be subject to approval in
draft by both Houses of Parliament. After five years of renewal, however,
an enabling Act of Parliament would be required. An attempt was made
to extend the life of the 19 55 and 1957 Acts to 1981 without annual renewal,
but the bill as passed, the Armed Forces Act 1976, section 1, retained the
requirement of annual Orders in Council until 1981.
The maintenance of a navy, which was seldom, if ever, regarded as an
instrument of royal oppression, has never needed parliamentary approval.
The navy exists by virtue of the royal prerogative; indeed, the prerogative
power to impress seafaring men into the navy has never been expressly
abrogated. But naval discipline dependent on an Act of Parliament (the
is

Naval Discipline Act 1957, as amended), and the money needed for the
navy, as for the other armed services, has to be determined by the Govern-
ment and authorized by Parliament. Parliamentary debate on any of the
armed services may take place on the presentation of the annual estimates,
the introduction of supply legislation, and any other legislative measures
relating to them. Since 1971 the Naval Discipline Act has been renewable
in the same way as the Army and Air Force Acts.
How far the army and the air force are regulated by prerogative is an
3
interesting but obscure question. The disposition of the forces and the
commissioning of officers certainly fall within the scope of the prerogative.
The enforcement of military discipline and the trial of offences under
military law are regulated by statute; and statutory regulations made by
4
the Defence Council may prescribe terms and conditions of service. Pay
and pensions are determined by royal warrants under the prerogative.
Although the relationship between a member of the forces and his em-
ployer, the Crown, has a distinct statutory flavour, there is ample
judicial

authority for the proposition that, save where a sentence has been
imposed
relations
by a court-martial or other statutory disciplinary authority, the
between the soldier and the Crown are not cognizable by the courts. Not
5
only he disabled from suing for wrongful reduction of pay or arrears
is
7 in the
of pay, but he cannot sue for wrongful dismissal even, it seems,
6

3. Chandler v. D.P.P. [1964] A.C. 763.

4. Armed Forces Act 1966, s. 2.
superior
5. Worthington v. Robinson (1897) 75 L.T. (N.S.) 446 (an action against a
officer); Leaman v. R [1920] 3 K.B. 663; cf. Logan (1945) 61 L.Q.R. at 260.
.

6. Exp. Napier (1852) 21 L.J.Q.B. 332; cf. Glanville Williams, Crown Proceedings,
69.
7. Re Poe (1833) 5 B. & Ad. 681; Grant v. Secretary of State for India (1877) 2
C.P.D.

1 96 The Executive
 face of inconsistent statutory or contractual provisions; nor can an officer
resign his commission without leave. 8 An ex-member of the forces cannot
sue for his pension. These rules are based partly on the prerogative and
partly on an overriding judge-made concept of public policy which
frowns upon litigation between the soldier and his employer. On the other
hand, the Crown can hold the soldier to the terms of his enlistment to
serve for a term of years unless he purchases his discharge, and it exercises
this power.
Central government organization for defence is now based partly on
prerogative but mainly on statute. 9 In 1977 there were a Secretary of
State, a Minister of State for Defence and three parliamentary under-
one for the royal navy, one for the army and one for the
secretaries of state,
air force. Within the Ministry of Defence there is located a Procurement
Executive, using up-to-date managerial and accounting techniques. 10
There is a chiefs of staff committee, composed of the Chief of Defence
Staff and the chiefs of staff of the three services; they have a right of
direct access to the Prime Minister and are occasionally asked to attend
Cabinet meetings. The detailed regulation of the services is entrusted to a
statutory Defence Council consisting of the Secretary of State and the
Minister of State, the chiefs of staff, the Permanent Under-Secretary of
State to the Ministry of Defence, the Chief Scientific Adviser to the
Government and the Chief Executive For each of the
for Procurement.
three services there is At Cabinet level there is a
a separate Defence Board.
Defence and Oversea Policy Committee, presided over by the Prime
Minister; the Secretary of State for Foreign and Commonwealth Affairs,
the Chancellor of the Exchequer and the Home Secretary are among its
members; the service chiefs of staff are frequently invited to attend. The
Security Services, which are responsible for counter-intelligence, have in-
timate links with the Prime Minister, the Secretary to the Cabinet, the
Ministry of Defence, the Foreign Office, the Home Office and the Special
Branch of the Metropolitan Police. 11
In Britain, as in a large number of other countries, there is a tendency

445; De Dohse v. R. (1886) 3 T.L.R. 114. The Employment Protection Act 1975 does
not affect the position; it does not apply to military servants of the Crown: s. 121(3).
8. Marks v. Commonwealth of Australia (1964) 111 C.L.R. 549; O' Day v. Common-
wealth , ibid., 599.
9. See Cmnd 2097 (1963); Defence (Transfer of Functions) Act 1964 and statutory
Orders in Council made thereunder.
10. Cmnd 4641 (1971): Colin Turpin, Government Contracts pp. 122-3. ,

11. cf. David Williams, Not in the Public Interest chs. 7, 8; Cmnd 2152 (1963) (the
,

Denning Report). The Head of the Security Services is directly answerable to the Home
Secretary.

Constitutional Position of the Armed Forces 197

 for regular officers in the armed services to show -a profound distaste for
party politics or to hold views sympathetic to the far right wing in politics;
or to entertain both attitudes simultaneously, if sometimes unwittingly.
But it is part of the service tradition to accept a position of subordination
to the civil power - a tradition rudely interrupted by the Curragh incident
in Ireland early in 19 14, 12 but unbroken since then 13 - and although the
British public has often been disenchanted with its political leaders, it is
averse from turning to the regular armed forces for salvation. Even in
times of civil disorder within the realm, the forces must normally (as we
shall see in a later chapter) 14 act only under the direction of the civil
authorities.

Military law and the civil law

As Dicey emphasized, a soldier 15 is, for most purposes, a civilian in

uniform. Although he is he is not
subject to certain special rules of law,
exempt from the general law of the land. 16
Those rules which differentiate soldiers from other sections of the com-
munity are a consequence of their special responsibilities. Regular soldiers,
like civil servants, are disqualified for membership of the House of Com-
mons. 17 The regulations of the service restricting the political activities of
members of the forces are stricter than the corresponding rules for civil
servants. A regular soldier is absolutely prohibited from standing as a
parliamentary candidate. In practice a serviceman who applied for
nomination papers as a parliamentary candidate would be given his
discharge by the service authorities. This practice became too well known
in 1962. A gallant 600 - and more - put in requests for nomination papers
as candidates at two impending by-elections. The liberal practice of the
service in granting discharges was peremptorily suspended. A select
committee of the House of Commons was hastily appointed to examine

12. cf. Sir Harold Nicolson, King George V, pp. 237-40 (when fifty-eight officers in
including a General, purported to resign their commissions rather than take
j Dublin,
part in coercing Ulster into an undivided self-governing Ireland).
13. It is possible, however, that the Wilson Government’s decision not to attempt
to crush by force the rebellion in Southern Rhodesia in or after November^ 965 was
partly influenced by doubts as to the morale of the troops.
14. See ch. 23.
15. ‘Soldier* is here used to include members of the navy, the air force and the
marines, as well as the army, subject to verbal modifications.
16. Introduction to the Study of the Law of the Constitution (10th edn), ch. 9. See also
Lynch v. Fitzgerald [1938] I.R. 382; Keir and Lawson, Cases in Constitutional Law
(5th edn), p. 212.
17. House of Commons Disqualification Act 1975, s. 1(1).

198 The Executive

the problem; upon this committee’s
recommendation, a special advisory
committee (appointed by the Home Secretary) was set up to scrutinize the
of would-be candidates seeking their discharge from the
bona tides
services.Only one of the prospective candidates for one of the seats was
recommended for discharge. Having been demobilized, he announced that
18
he had decided, after all, not to stand.
Serving members of the forces are entitled to vote by post or proxy at

elections; they are exempt from jury service; they may make informal
wills while on actual military service. They are immune from personal
death or injury inflicted on another member of the
liability in tort for
armed forces on duty or on land, premises or transport being used for
the purposes of the forces, and are unable to recover damages against the
Crown (or individual members of the forces) in respect of death or injury
in such circumstances, if the responsible Minister certifies
that the death

or injury was attributable to military service for the purposes of a pen-

sion;
19
no corresponding rules extend to civil servants. We have already
referred to the non-justiciability of claims against the Crown relating to
wrongful discharge, pay and pensions.
Serving members of the armed forces are subject to military law as well
as the ordinary law of the land. Military law is a readily ascertainable
10
body of rules, collected in the official Manual of Military Law. It is
primarily a body of criminal law, contained in statutes and subordinate
legislative instruments. must be sharply distinguished from martial law,
It

which is not a crystallized code of rules at all but a state of affairs in which
there has been a complete breakdown of civil authority and the governance
21
of the populace is handed over to or assumed by a military commander.
In the United Kingdom, certain very serious criminal offences com-
mitted by members of the forces arc triable only by the civil (i.e. ordinary
criminal) courts. Other offences are triable by court-martial. court- A
martial is composed of military officers sitting without a jury; they are
assisted by a judge advocate, a barrister who sums up the evidence and
advises the court on questions of law. Minor offences are triable summarily
by commanding officers. A number of offences under military law have
no equivalent in the ordinary criminal law - for example, conduct to the
prejudice of good order and military discipline.
Till 1951 the enforcement of military discipline and the criminal
law by
courts-martial was largely a self-contained system; only superior officers
and, in the last resort, the Army Council (as it then was) could review a

18. R. L. Leonard, Elections in Britain, pp. 64-5. The advisory committee still exists.

19. Crown Proceedings Act 1947, s. 10. See further ch. 28.
20. See also Stuart-Smith (1969) 85 L.Q.R. 478.
''

21. See ch. 23.

Constitutional Position of the Armed Forces 199

 conviction of a person subject to military law or the sentence imposed on
him, with an ultimate right of recourse to the royal prerogative of mercy.
True, the High Court would issue habeas corpus to direct the release of a
person detained by the military authorities if he was not subject to military
law, or certiorari to quash a decision
if jurisdiction had been manifestly
22
exceeded But although the High Court was capable of exercising the
.

same supervisory jurisdiction (by orders of certiorari, prohibition and

mandamus) over courts-martial as over other inferior statutory tribunals,
in practice it was extremely reluctant to intervene even when grave pro-
cedural irregularities had been established 23 the judges affirmed that they
;

would interfere if the ‘civil rights’ of an individual had been infringed,

but were conspicuously vague in explaining what they meant by the civil
rights of a soldier .
24
A similar reluctance to appear to prejudice the
'
administration of military discipline in any way whatsoever was exhibited
by the courts in other contexts: in the decisions on dismissal and pay; in
decisions that no action would lie against members of a court-martial or a
commanding officer for false imprisonment or malicious prosecution.while
acting within their jurisdiction even if actuated by improper motives and
25
lacking reasonable cause , and that reports written by a superior officer
upon another officer in the course of duty 26 and the proceedings of a
military court of inquiry enjoyed absolute privilege in the law of defa-
27
mation . Military discipline and justice in the courts seemed to be uneasy
bedfellows.
Some of the older decisions on immunity from civil liability may still
be good law. But the administration of military discipline is no longer a
self-contained system. In 1951 a Courts-Martial Appeal Court, composed
of High Court judges and Scottish and Northern Ireland judges of like
status, was constituted and given jurisdiction to hear appeals from courts-
martial after internal review procedures had been exhausted. Thus was
reasserted the primacy of the civil power. Recourse to the common-law
supervisory remedies (other than habeas corpus) became largely super-
fluous; in any event these remedies have territorial limitations, whereas
the jurisdiction of the new court extends to courts-martial held in any part
of the world.

22. As in R. v. Wormwood Scrubs Prison Governor ex p. Boy dell [1948] 2 K.B. 193.
,

23. As in R. v. Army Council ex p. Ravenscroft [1917] 2 K.B. 504; R. v. Secretary

,

of State for War, ex p. Martyn [1949] 2 All E.R. 242; R. v. O.C. Depot Battalion,
R.A.S.C. Colchester ex p. Elliott, ibid. 373.
,

24. See Re Mansergh (1861) 1 B. & S. 400, and Martyn's and Elliott's cases, above.
25. Heddon v. Evans (1919) 35 T.L.R. 642. See also Johnstone v. Sutton (1786)
1 T.R. 493, 510, 784; Fraser v. Balfour (1918) 34 T.L.R. 502.
26. Dawkins v. Paulet (1869) L.R. 5 Q.B. 94.
27. Dawkins v. Rokeby (1875) L.R. 7 H.L. 744.

200 The Executive

 28 to the court, after military
Under the present law appeal will lie

remedies have been exhausted, against a conviction by a court-martial.

Leave of the Appeal Court must be obtained, and the court has no juris-
diction to entertain an appeal against sentence alone. A further appeal
House of Lords at the instance of the accused or the Defence
will lie to the
Council (the respondent) if the Appeal Court or the Lords give leave and
the Appeal Court certifies that a point of law of general public importance
is involved. The royal prerogative of mercy is preserved.

Superior orders

Before 1966 a member of the forces might incur double jeopardy. If he

were convicted of an offence under military law, he could still be charged
with and convicted of the same offence in a civil court, though the latter
was to take into account any sentence imposed by the military authorities.
(Conviction by a civil court precluded trial same
offence by court-
for the
martial, though the might give rise to a
facts constituting the civil offence
separate disciplinary charge under military law.) Since 1966 the anomaly
has been largely removed. Conviction by a court-martial precludes trial by a
29
civil court for any offence that is substantially the same.
A member of the forces may nevertheless stand in double jeopardy in
a different context. If, in obedience to superior orders, he commits a
criminal offence or a civil wrong (for example, wounding a rioter in cir-
cumstances where this is not reasonably justifiable) he may incur legal
liability before the ordinary courts. If, on the other hand, he
refuses to

obey an order because he believes it to be unlawful, he may be court-

martiallcd. It may be said that the dilemma is unreal because it is not an
offence under military law to disobey an unlawful command; a soldier
cannot be convicted for disobedience unless the command was lawful.
But since a soldier is a member of a disciplined force conditioned' to the
habit of obedience, and since, moreover, a court-martial may well
hold
the command to be lawful, the dilemma and the risk can be very
real. Is

it reasonable, then, to assert that obedience

to superior orders can never

be a defence to an unlawful act in proceedings before the courts? The

Nuremberg War Crimes trials proceeded on the footing that superior
of
orders were no defence, though they might be pleaded in mitigation
modern editions of
punishment. This general proposition is adopted in
the Manual of Military Law though ,
it is conceded that obedience to
superior orders may afford a defence to particular offences by, for instance,
negativing the existence of criminal intent where this is relevant. Doubts

28. Consolidated in the Courts-Martial (Appeals) Act 1968.

29. See Armed Forces Act 1966, ss. 25, 26, 35.

Constitutional Position of the Armed Forces 201

 as to. still persist. In a much-quoted South African
the content of the rule
case, decided during the Boer War, 30 it was held that an honest belief in
the lawfulness of an order to shoot an African civilian was a good defence
to a charge of murder, the order not being manifestly illegal. The dangers
of such a principle are illustrated by the facts of the case; and there is no
general rule of criminal law that a reasonable mistake of law is a defence. 31
Yet a reasonable mistake induced by an order given by a military superior
to do an act which, in the circumstances, is not manifestly illegal may in
some situations be akin to the operation of duress on a soldier, and can
fairlybe analysed in that fashion. The civil liability of the soldier will not
necessarily be governed by the same considerations, particularly where
vicarious liability can be affixed to the Crown.

Civilians and courts-martial

Courts-martial outside the United Kingdom have jurisdiction over a wide

range of civilian dependants and employees of the forces. Twenty-seven
trials of civilians by court-martial took place in 1967. 32 Their jurisdiction

extends not only to all criminal offences under English law but also to
certain offences of a disciplinary nature (for example, breach of a local
curfew).The jurisdiction embraces criminal offences in respect of which
United Kingdom courts have no extraterritorial jurisdiction, and others
which, if committed in the United Kingdom, would be triable only in a
civil court.

This is not an entirely satisfactory state of affairs: pre-trial safeguards

f are not as efficacious as in a civil court; 33 guilt and sentence are deter-
mined by a simple majority of a panel of military officers who will hardly
ever have legal qualifications; the accused will often lack the services of a
lawyer to defend him. 34 The existence of the Courts-Martial Appeal
Court is an ameliorating factor but cannot cure every defect.
35
The Armed
30. R. v. Smith 0900) Cape of Good Hope S.C. 561. See also Keighley v. Bell (1886)
4 F. & F. 763 at 790, per Willes J.
31. See J. C. Smith and Brian Hogan, Criminal Law (3rd edn), p. 148. cf. A. J.
Ash-
worth [1974] C/7/7? L.R. 652.
32. Gordon Borne, ‘Courts-martial, civilians and civil liberties’ (1969) 32 Mod
L. Rev 35.
.

33. For example, the Judges’ Rules (see p. 451) need not be applied (R^v. Harris-
Rivett [1956] 1 Q.B. 220) and there is nothing exactly equivalent to a
preliminary
hearing before an ordinary criminal court
34. The accused is, however, entitled to be represented by a
defending officer. On
the quality of judge advocates, see Borrie, loc. cit.,
pp. 47-8.
35. cf. the position under American constitutional law as
interpreted by the Supreme
Court of the United States: Reid v. Covert 354 U.S. 1
(1957), and subsequent cases
holding that trial of civilian dependants and employees
by court-martial was un-
constitutional.

- 202 The Executive

Forces Act 1976, sections 6 to 9 and schedules 3 and 4, when brought into

effect, would meet these objections to some extent. Standing Civilian

Courts would be established, to consist of a ‘magistrate’ - an assistant to
the Judge Advocate General who will have knowledge of the law - and
not more than two assessors drawn from a panel of civilians and military
officers. An accused would have the right of appeal to a court-martial,
or to elect to be tried by court-martial instead of by the Standing Civilian
Court. Regulations may be made by the Secretary of State which would
deal with the procedure of the Court, including the question of the
representation of an accused person before it.
Under the Visiting Forces Act 1952, members of visiting Common-
wealth forces, and of such other countries as may be designated by Order
in Council (in pursuance of an international agreement for common
defence), stationed in the United Kingdom, and their civilian components,
are exempt from the jurisdiction of the ordinary criminal courts in respect
of offences 36 committed on duty or against the persons of forces personnel
or the property of the forces and their personnel; the operation of tit
Act has been extended to certain British dependencies. In addition, tort
claims are settled by special arrangements and are not determinable by
the ordinary courts unless the claimant is denied satisfaction through
administrative channels.

36. See note 35 on constitutional limitation of the jurisdiction of American courts-

martial over civilians -a point not yet established in 1952, when the agreement was
made and the Act was passed. American courts-martial try American servicemen for
those criminal offences excluded from the jurisdiction ol the local courts.

Constitutional Position of the Armed Forces 203

Chapter 9
Public Boards and
Nationalized Industries

Government and quasi-government bodies 1

Britain governed primarily by central government Departments and

is

elected local authorities.We have seen that, apart from Departments

directly headed by Ministers, there are also subordinate central Depart-
ments or sub-departments which are not Ministries; they are not directly
headed by a Minister, but they consist of civil servants and a Minister
2
usually has substantial or full control over them Subordinate Depart-
.

ments shade off into bodies auxiliary to but not integral parts of the
executive branch of government, bodies managerial, regulatory, pro-
motional, investigatory and advisory, bodies that defy orderly classification
by reference to any meaningful criteria, if only because they have been set
up by Government and Parliament ad hoc to discharge a variety of
specialized tasks best performed by institutions partly autonomous and
free from comprehensive political control. The least incoherent group of
these ‘ quasi-go vernmental’ bodies are the corporations administering
nationalized industries.
Central government in the narrower sense is not conducted exclusively
in Whitehall and its environs. Quite apart from the substantial devolution
of responsibility for Scottish affairs to sub-departments of the Scottish
Office located in Edinburgh, and the lesser measure of devolution for
Welsh affairs to the Welsh Office 3 several of the United Kingdom Depart-
,
4
ments maintain regional and local organizations and offices Among the .

Departments with regional offices are the Department of the Environment,

the Ministry of Agriculture and Fisheries, the Department of Industry and
the Department of Health and Social Security. Still better known are the

1. cf. Sir Arthur Street, ‘Quasi-Government Bodies since 1918’, in British Govern-

ment since 1918 (Institute of Public Administration, 1950).

2. pp. 176-8.
3. See ch. 30. Devolution to Scotland and Wales would be greatly increased if the
Government’s proposals on the subject pass into law: see p. 639-40.
4. See Brian <J. Smith, Regionalism in England vols. 1 and 2 (Acton Society Trust,
,

1964-5); Gavin McCrone, Regional Policy in Britain ; A. H. Hanson and Malcolm

Walles, Governing Britain , ch. 10.

204 The Executive

local employment exchanges of the Department of Employment, social
security offices and inland revenue offices. Immigration officers of the*
Home Office, and customs officers of the Board of Customs and Excise, are
stationed at seaports and airports. And various public corporations, parti-
cularly those managing nationalized industries, are organized partly on a
regional basis.
In February 1977 there was still no pattern of regional government in
the United Kingdom, but the Government’s devolution plans would alter
this radically - if enacted. At the time of writing there was a patchwork
5

quilt of overlapping ad hoc regions for the provision, regulation or co-

ordination of particular services. Functional regionalism moved a stage
further in 1973 with the reorganization of the National Health Service and
water authorities on a regional basis. The Government had not, however,
accepted the Redcliffe-Maud Commission’s recommendations for estab-
lishing provincial councils in England as indirectly elected regional plan-
ning authorities. 6

The role of government in the mixed economy and the welfare State:
a brief sketch7

1. A number of public services are provided by elected local authorities. 8

These services include schools, sanitation, street lighting, traffic control,
housing, environmental planning and certain welfare services (for example,
child care). Before the introduction of the National Health Service many
local authorities provided hospitals. Till the post-war nationalization
measures of the Labour Government, a majority of gas undertakings and a
substantial number of electricity undertakings were operated by local
authorities. Municipal enterprise has suffered as a result of pressure to
achieve uniform standards by centralization, though there still exist local
transport undertakings, even municipal banks and airfields. In one
important area, the regulation of public passenger transport, decentral-
ization of responsibility from the Secretary of State to metropolitan
counties is taking place. 9

2. A few local public services are provided or regulated by ad hoc author-

5. See pp. 639-40.
6. Report of the Royal Commission on Local Government in England (Cmnd 4040
(1969)), ch. 10.
7. Books and articles about these matters date rapidly, but for a general analysis,
see W. Friedmann, The Stateand the Rule of Law in a Mixed Economy (1971).
8. Seech. 18.
9. Local Government Act 1972, s. 202; see also Transport (London) Act 1969.

Public Boards and Nationalized Industries 205

ities composed wholly or mainly of members of the local authorities in
the area. 10
3. A large proportion of social services are provided directly or indirectly
by the central government. Social security benefits are dispensed by the
Department of Health and Social Security, which also organizes and
controls the National Health Service; hospitals are managed out of central
government funds by appointed Regional Health Authorities and Area
Health Authorities; financial assistance to the destitute is supplied by the
appointed Supplementary Benefits Commission, again out of central funds.
4. Land use is by the Department of the Environment
closely regulated
and Governmental action to create new towns
local planning authorities.
administered by development corporations has checked the concentration
of industry and population in big conurbations.
5. A public service may be operated directly by a government Department.
The one conspicuous example was the Post Office, which became a semi-
autonomous public corporation in 1969 after more than a century of
departmental operation.
6. Governments may participate in or regulate the economy in a variety
of ways. They make take over the assets of a privately owned company
and appoint its directors without destroying its legal capacity as a com- _
pany; thus Cable and Wireless Ltd, a company responsible for inter-
11
national telecommunications, became government-owned in 1947. They
may acquire a majority or minority shareholding in a privately owned
company in return for the right to appoint directors. They may and do
12

grant subsidies and loans, and offer tax incentives, to commercial and
industrial firms for research and development or to prevent large-scale
unemployment by salvaging an ailing firm or industry or to promote
13
development in a needy region. They may influence the location of
industry and office development by systems of licensing. They may set up a

10. J. F. Garner, Administrative Law, 4th edn, pp. 339-40.

11. Under section 130 of the Post Office Act 1969 the Treasury was empowered to
dispose of these assets to the Post Office, but no immediate steps were taken for that
purpose.
12. See T. C. Daintith in W. Friedmann and J. F. Gamer (eds.), Government Enter-
prise , ch. 3.
13. The principal legislative instruments for achieving these purposes are the
Industry Act 1972, the Local Employment Act 1972 and the Industry Act 1975. Under
the 1975 Act the National Enterprise Board has a key role to play in this area: see
Cmnd 5710 (1976). Regional development is being promoted by EEC policies.
Agricultural subsidies are to be replaced by agricultural import levies with a view
to adoption of the Communities’ common agricultural policy; a new government
Department, the Intervention Board for Agricultural Produce, was set up to implement
that policy (European Communities Act 1972, s. -6).

206 The Executive *

semi-autonomous public corporation like the Highlands and Islands
Development Board and supply it with public funds. They may constitute
a semi-autonomous body like the Civil Aviation Authority to regulate
14
public and private enterprise or a Monopolies and Mergers Commission
;

and a Restrictive Practices Court to regulate aspects of private enterprise.

If fiscal controls and tax policies are incapable of restraining inflation or
deflation or maintaining a satisfactory balance of payments or keeping
unemployment down to an acceptable level or encouraging economic
development, growth or productivity, then a compulsory rc-uitiinn nf
prices, charges and incomes may have to be imposed, monitored by semi-
autonomous boards.

It is questionable whether, at the present time, a book on constitutional

law should proceed far beyond these generalities. When the Conservative
Government came to office in 1970 it intended to restrict the role of
Government and public enterprise in the national economy. State-owned
public houses were sold off; 15 the Land Commission was dissolved; 16 so
was the Industrial Reorganization Corporation, which had succoured
lame ducks; 17 powers were assumed to enable the fringe activities of
nationalized activities to be reduced; 18 the advisory National Board for
Prices and Incomes and the Consumer Council were wound up; and so on.
But in 1971 the insolvent Rolls-Royce company was nationalized; 19
Government aid rescued the Clydeside shipbuilding industry from disaster;
soon a Minister for Industrial Development and an Industrial Develop-
ment Executive were created to provide selective financial assistance
for industry. 20 Late in 1972 a temporary standstill in price, rent and wage
increases was imposed; 21 and in January 1973 a longer-term compulsory
policy to combat inflation, at least as rigorous as the Labour Govern-
ment’s, was announced. 23 A Cabinet Minister for Trade and Consumer
22

Affairs was appointed; in 1973 there was a Director-General of Fair Trad-

ing, a Consumer Protection Advisory Committee, and a new Monopolies
and Mergers Commission with wider powers than the existing Monopolies

14. Civil Aviation Act 1971.

15. Licensing (Abolition of State Management) Act 1971.
16. Land Commission (Dissolution) Act 1971.
17. Industry Act 1971.
18. See, for example. Coal Industry Act 1971; Transport Holding Company Act
1971; Iron and Steel Act 1972; Civil Aviation Act 1971, s. 40(l)(c).
19. Rolls-Royce (Purchase) Act 1971.
20. Industry Act 1972. The Minister was subordinate to the Secretary of State for
Trade and Industry.
21. Counter-Inflation (Temporary Provisions) Act 1972.
22. cf. Prices and Incomes Acts 1966, 1967 and 1968.
23. Cmnd 5205 (1973); Counter-Inflation Act 1973.

Public Boards and Nationalized Industries 207

Commission the Restrictive Practices Court was given a broader juris-
;

24
diction. When Labour returned to office in 1974 a Department of Prices
and Consumer Protection was set up with a Secretary of State in the
Cabinet. 25 The new Government’s ‘social contract’ quite soon developed
into a further stage - severe, but accepted by the TUC as necessary in the
26
‘attack on inflation’ and to that extent ‘voluntary’. 27 In 1976 this was,
with agreement, replaced by pay limits in return for income tax con-
cessions. And a vigorous policy of state intervention in industry was given
legislative form. 28
Potentially some of these developments were of considerable consti-
tutional interest ; but so many of them were influenced by economic and
political vicissitudes that the most appropriate commentator was the
journalist.
Nationalization of industry through the vesting of privately or locally
owned assets in a (usually monopolistic) public corporation, subject to the
payment of compensation, has been the most characteristic feature of
public enterprise since 1945 As we have noted, nationalization can assume
more than one form; Cable and Wireless Ltd did not become a public
1

corporation, and the assets of the Bank of England were transferred to the
Treasury. But there is a broad general pattern: a new body corporate is
constituted; its governing body is appointed by a Minister and is then given
a substantial degree of freedom to conduct the enterprise in day-to-day
matters in its own discretion; the Minister retains powers to give it
directions of a general character and certain specific powers; Treasury
sanction is required for ventures with large financial implications; the
corporation has its own assets and is expected broadly to pay its own way;
its employees are not civil servants. The form of nationalization
was
suggested partly by the British Broadcasting Corporation, partly by the
experience of the London Passenger Transport Board. Nationalization as
an instrument of political and economic policy was conceived by the
Labour Party and implemented when the first Labour Government with
29
an overall majority in the House of Commons came to power in 1945.

24. Fair Trading Act 1973, s. 104.

25. S.I. 1974, No. 692.
26. Cmnd 6151 (1975);Cmnd 6507 (1976).
27. But see the Remuneration, Charges and Grants Act 1975.
28. cf. in 1975 the Offshore Petroleum Development (Scotland),
Oil Taxation,

British Leyland, Scottish Development Agency, Welsh Development

Agency, Industry
and Petroleum and Submarine Pipe-lines Acts; and in 1976 the Development Land
Tax and Dock Work Regulation Acts.
29. See generally W. A. Robson, Nationalised Industry and Public
Ownership (2nd
edn); A. H. Hanson, Parliament and Public Ownerships Nationalisation- a
Book of
Readings ; R. Kelf-Cohen, Twenty Years of Nationalisation; Leonard Tivey, Nationali-

208 The Executive

Private ownership of the principal means of production and distribution
was regarded as morally wrong and detrimental to the public interest; it
was necessary to supplant the profit motive with a zeal for public service,
to revivify declining industries, to achieve levels of efficiency which private
enterprise was incapable of reaching, and to install the Government on the
commanding heights of the economy. Coal, electricity, gas, inland trans-
port, airways, and the iron and steel industry were nationalized between
1946 and 1951. Iron and steel were denationalized under a Conservative
Government in 1953, and renationalized under a Labour Government in
1967. That nationalization had ceased to be regarded pre-eminently as a
political creed was, however, illustrated by the nationalization of atomic
energy under the Conservatives in 1954. Developments under the Con-
servative Government of 1970 and the Labour Government which suc-
ceeded it have already been outlined. Perhaps one day we shaii sec iho
semi-autonomous agency or commission, regulating the conduct of private
enterprise, installed as a characteristic feature of the British administrative
system. 30 But as yet they still order things differently in the United States. 31

Nationalized industries: legal and constitutional issues

Detailed examination of the structure, organization and functions of

individual nationalized industries falls outside the scope of this book. 32
The main bodies conducting the affairs of the industries are the National
Coal Board (which has divisional executives); the Central Electricity
Generating Board and area electricity boards (responsible for generation,
transmission and distribution) and the Electricity Council (a coordinating
body which advises the Secretary of Stale); the South of Scotland Elec-
tricity Board and the North of Scotland Hydro-clectricity Board; the
British Airways Board
33
and the British Airports Authority 34 (which
W. Friedmann and J. F. Garner (eds.), Government Enterprise
sation in British Industry, ;

David Coombes, State Enterprise: Business or Politics? (1971); C. D. Foster, Politics ,

Finance and the Role oj Economics (1971); Richard Pryke, Public Enterprise in
Practice (1971).
30. The Civil Aviation Authority has certain features of an American-type agency,
but it is under fairly close Government control; see G. Ganz [1972] Public Law 215
at 224-30. The Fair Trading Act 1973 evokes close analogies.
31. See, for example, Bernard Schwartz and H. W. R. Wade, Legal Control of
Government (1972), ch. 2.
32. See further Robson, op. cit. ; J. A. G. Griffith and H. Street, Principles of
Administrative Law (5th edn), ch. 7; J. F. Garner, Administrative Law (4th edn),
ch. 10; J. D. B. Mitchell, Constitutional Law (2nd edn), ch. 12; Friedmann and
Garner, op. cit., chs, 1, 2.
33. Civil Aviation Act 1971, Part 3.
34. Constituted under the Airports Authority Act 1965 (now consolidated by the
Airports Authority Act 1975).

Public Boards and Nationalized Industries 209

controls the four principal airports in Britain) the British Gas Corporation
;

with a regional organization 35 replacing the Gas Council and its area
,
36
boards; the Atomic Energy Authority; the British Steel Corporation ; the
38
Post Office ; 37 a complex network of inland transport authorities in- ,

cluding the British Railways Board, the British Docks Board, the British
Waterways Board, the National Freight Corporation (which provides a
publicly owned freight transport service and promotes the provision of
integrated freight services), the Scottish Transport Group, the London
Transport Executive and other regional transport authorities designated
by the Secretary of State, and the National Bus Company; and the British
Broadcasting Corporation, which operates under a royal charter and a
39
quinquennial licence .

40
The responsible Minister (the Secretary of State for Industry , or for the
Environment, or for Scotland) appoints (or advises the appointment of)
members of the governing boards; the^members will hold office for fixed
periods; the Minister has powers of dismissal (which have seldom been
exercised and a power not to re-appoint them 42 Broad policy control
41
) .

rests in the hands of the Minister; day-to-day administrative control lies in

the hands of the governing bodies; an ihdeterminate zone where policy
merges with day-to-day administration lies between. A typical statutory
provision is that the Minister shall have power to give the board directions

35. Gas Act 1972.

36. Constituted under the Iron and Steel Act 1967 (now consolidated by the Iron
and Act 1975).
Steel
37. Post Office Act 1969.
38. See the Transport Act 1968, amending the Transport Act 1962. The original
nationalization Act was the Transport Act 1947; none of the nationalized industries
has undergone so much structural change as the transport services.
39. But until the Annan Committee on the Future of Broadcasting reports (probably
in 1977) the BBC is operating under a Supplemental Licence and Agreement which
does- not expire until 31 July 1979, together with a Supplemental Charter of similar
duration: 912 H.C. Deb. 1567-1632 (9 June 1976). The Independent Broadcasting
Authority (Independent Broadcasting Authority Act 1973) is a regulatory rather than
an operational body; commercial television and radio programmes are provided
through regional programme companies to which it allocates contracts. The life of the
IBA has also been extended to 31 July 1979 by a Supplemental Licence^ to await
Annan: Cmnd 6541 (1976).
40. Who is generally responsible for the Post Office. The Home Secretary has in
practice a lesser responsibility for broadcasting; the BBC are
Governors of the
formally appointed by Her Majesty in Council. The BBC is sui generis ; Ministers’
powers are very wide, but politicians have observed a self-denying ordinance.
41. But in 1970 the Minister terminated the appointment oi the then chairman of
the Post Office.
42. The Minister did not renew the contracts of the Chairman of British Steel in 1976
or of the Chairman of the Central Electricity Generating Board in 1977.

21 0 The Executive
 of a general character as to the exercise of its functions on matters appear-
ing tohim to affect the national interest. 43 In some instances - for example,
the Atomic Energy Authority, 44 the British Steel Corporation 45 - he will
have a general power to give specific directions, subject to qualifications. 46
Powers to give specific directions to the aviation authorities are wider. 47
The nationalization Acts also confer upon the Ministers particular powers.
Thus, the Minister is empowered to prescribe the form of the corporation’s
accounts and appoint auditors, except where (as with the Atomic Energy
Authority) the accounts are audited by the Comptroller and Auditor-
General; his sanction is required for large schemes of capital investment

or reconstruction or public borrowing; in some instances he may advance

sums (for example, for maintaining uneconomic railway services). 48
Ministerial and Treasury approval is also needed for money advanced out
of the National Loans Fund for any large-scale scheme of public invest-
ment or borrowing. The Minister will be entitled to call for information
from the board regarding its activities. The board must present its accounts
and an annual report to the Minister. He is usually empowered to prescribe
schemes for training and research; or his approval of such schemes will
be necessary. There is no set pattern of ministerial authority.
In most cases the corporations have been expected and required to
conduct their affairs as commercial undertakings operating in the public
interest and to be financially self-supporting over a period of years; the
BBC and the Atomic Energy Authority, which arc financed primarily
out of licence fees prescribed by the Government and direct government
grants respectively, have always been exceptions. Solvency has not,
however, always proved to be an attainable objective and financial obli-
gations have had to be modified. The maintenance of an arm’s length
relationship between Ministers and boards has also been impracticable
in some instances, because of (1) the political repercussions of many day-
to-day decisions, or errors or misfortunes in management - for example,
public reaction to power cuts, or increases in fares or charges, or closures
of uneconomic pits or transport services; or the dislocation caused by
strikes in major industries providing public services; and the political and
economic implications of a nationalized airline buying foreign aircraft in
preference to more expensive British-manufactured aircraft; (2) pressure

43. For example, Coal Industry Nationalisation Act 1946, 8. 3(1).

44. Atomic Energy Authority Act 1954, s. 3.
45. Iron and Steel Act 1975, s. 4.
46. See also Transport Act 1968, s. 6(1) (power to give specific directions to transport
authorities upon the recommendation of the National Freight Integration Council).
47. Civil Aviation Act 1971, ss. 4, 40.
48. Transport Act 1968, s. 39. See also Transport (Grunts) Act 1972.

Public Boards and Nationalized Industries 211

 by individual M. P.s to secure ministerial intervention in various matters of
detailed management, and party political criticism of the performance of
industries that were nationalized as an act of political conviction; (3) the
need for coordinated national economic planning, which may be inimical
to the pursuit of efficiency by individual industries in isolation from other
aspects of the economy; and (4) the unforeseen dependence of some
nationalized industries on government financial aid and therefore more
detailed government control. In the early 1970s the Government was
impelled to intervene in serious labour disputes involving the industries;
to supplement the boards ’ resources in order to enable them to arrive at
wage settlements; to write off massive deficits; to finance programmes for
expansion or rationalization; and to bring the industries within the ambit
of its mandatory counter-infiationary policies.
Again, the formal lines of demarcation between ministerial authority
and the board’s autonomy are often unclear. The role of determining
policy’ guidelines must inevitably be shared between the Minister and the
board; precisely how the policy-making function is in fact to be distributed
is not and cannot realistically be defined. In any event, where does national

policy begin and end? That all uneconomic pits or that no uneconomic
pitshould be closed would surely be a national policy decision. A decision
that some uneconomic pits should be closed might be regarded either as a
matter of national policy or as a matter of industrial management, accord-
ing to the particular political, social and economic context. Decisions
which uneconomic pits should be closed, when, and in what circumstances,
would be primarily matters of industrial management, but they could
assume national dimensions. Practice has varied; in some industries the
Minister has offered little policy guidance; in others he has frequently
intervened in matters of detail but without giving formal directions.
Indeed, up to 1968 only two general statutory directions on matters of
49
national policy had been given by Ministers to boards. Ministers prefer
to exert informal pressure on boards; this has been facilitated by regular
'
personal contacts with their chairmen. Constitutionally this may be an
unsatisfactory anomaly. More clearly demarcated powers and prohibitions
can be. enshrined in legislation; the outcome will not necessarily be con-
ducive to efficiency or harmony.

49. First Report from Select Committee on Nationalized Industries, Session 1967-68
(Ministerial Control of the Nationalized Industries) (H.C. 371-1 of 1967-68), para. 649.
For the functions of the Committee, see p. 216. For the Government’s reactions to the
report, see Cmnd 4027 (1969). .

*
21 2 The Executive
Legal status

The corporations can sue and be sued in own names. Their em-
their
own officers and servants.
ployees are their doubtful whether any of
It is

the corporations is an agent or servant of the Crown enjoying Crown

immunities and privileges; 50 some of the recent Acts have placed these
questions beyond doubt. 51 The National Health Service authoritieson
the other hand exercise their functions on behalf of the Crown. 52 The
Atomic Energy Authority is a marginal case, for it is closely controlled
by the Secretary of State and derives its revenue mainly from the central
government; still, for most legal purposes other than liability to rates
and taxes it is treated as an autonomous body corporate, not as a Crown
servant. 53
The legal powers vested in the corporations are extensive, and although
a person having a sufficient legal interest can impugn the validity of their
acts and decisions, successful challenges will be rare, first because of the
breadth of their powers 54 and, secondly, because of the disinclination of the
courts to afford locus standi to members of the general public, 55 though it is
open to the Attorney-General to sue for an injunction or a declaration. 56
The primary legal duties of the corporations are so broadly drawn (for
example, ‘to provide an efficient service .’) that they must be regarded
. .

as non-justiciable; indeed, the general duties of the British Railways

Board and the National Freight Corporation are expressly declared to be
unenforceable in a court, 57 though section 106(1) of the Transport Act
1968 goes to the other extreme by providing that the maintenance duties
of the British Waterways Board may be enforced in judicial proceedings
by any person. Whether a duty is potentially susceptible of judicial en-
forcement must depend mainly on the degree of precision with which it is

50. Tamliti v.Hcmnaford [1950] 1 K.B. 18 (former British Transport Commission);

BBC Johns [1965] Ch. 32; p. 120.
v.
51. For example. Transport Act 1968, ss. 52(5), 160-162; Post Office Act 1969,
s. 6(5).
Nottingham No. 1 Area Hospital Management Committee v. Owen fl 958]
52.
1 Q.B. 50. See also Pfizer Ltd v. Ministry of Health [1965] A.C. 512. The situation
unaltered by the National Health Service Reorganisation Act 1973: Wood v. Leeds
Area Health Authority [1974] 1 C.R. 535. But the regional health authorities and area
health authorities can sue and be sued in their own names.
53. Atomic Energy Authority Act 1954, s. 6.
54. See, for example, Roberts ( Charles ) & Co. v. British Railways Board [1965]
1 W.L.R. 396; though cf. South of Scotland Electricity Board v. British Oxygen Co.

[1956] 1 W.L.R. 1069; [1959] 1 W.L.R. 587.

example, McWhirter's case (note 58), and pp. 465, 554, 591, 593.
55. See, for
56. See pp. 367, 592-3.
57. Transport Act 1962, s. 3(4); Transport Act 1968, s. 1(3). See also Iron and Steel
Act 1975, s. 2(4); Post Office Act 1969, s. 9(4).

Public Boards and Nationalized Industries 213

formulated. 58 If a board were to refuse to comply with its duty to act in
conformity with a direction properly issued to it by a Minister, the latter
could presumably compel performance of the duty by obtaining an order
of mandamus, or alternatively be awarded a judicial declaration that the
board was in breach of its duty; but matters have yet to be brought to this
pass, and in such a situation a Minister might prefer to exercise his powers
of dismissal. 59

Public accountability and extra-judicial safeguards

The main reason for vesting the ownership of nationalized industries in

semi-autonomous public corporations, instead of bringing them within
the framework of normal departmental administration, was to encourage
a competitive spirit of initiative and enterprise. The civil service ethos
would, it was thought, inhibit the managerial staff of the industries from
making untried experiments in new fields; it would induce an excess of
caution and addiction to precedent; officials would always be looking
over their shoulders, apprehensive of the parliamentary inquisitor. Hence
an attempt was made to insulate the industries from the rigours of question
time by restricting ministerial responsibility for the conduct of their
affairs. Against this background, the scope of parliamentary scrutiny is
inevitably more limited than it was in relation to the Post Office before it
ceased to be a government Department.

Parliamentary questions In the early phase of nationalization, the Minister

.

of Fuel and Power and other superintending Ministers refused to answer

questions about matters concerning the industries which in their opinion
related to day-to-day administration and were therefore outside their
responsibility. In accordance with the rules of the House of Commons,
all questions of a like nature to those to which answers had been refused

were simply disallowed. This gave rise to a good deal of dissatisfaction,

and in 1948 the Speaker announced a modified ruling: if it appeared to
him that such a question raised a matter of urgent public importance, he
would allow the question to be put; it would be up to the Minister to
decide whether to answer it; When in doubt, the clerks at the table (who
in the first instance receive notice of questions to be put in the House)

58.Hence it appears that the duty of the IBA to satisfy- themselves that as far as
possibleprogrammes do not include matter offensive to public feeling (Independent
Broadcasting Authority Act 1973, s. 4(l)(a), re-enacting Television Act 1964, s.
narrowly within the area of duties enforceable at the suit of the Attorney-
3(l)(fl)) falls

General; Att.-Gen.y ex rel. McWhirter v. IBA [1973] Q.B. 629.

59. As the members of the governing body of RTE (the Irish equivalent of the
BBC) were dismissed in November 1972. As a matter of strict law, it would be
possible for the BBC’s licence to be revoked.

214 The Executive

 have generally taken a broad view of the latitude thus granted in acceptin
questions ; 60
and Ministers have not often refused to answer a
question
on the ground that it related to day-to-day management or administration
though some of the questions tabled and answered might well have
been
rejected on ground 61
that .

Clearly a Minister can properly be asked to answer a question

within
the field of his statutory responsibility - for example, a question
about
appointments he has made and has power to terminate or has terminated
or why he has or has not given an approval or a specific direction
which
he is required or empowered by statute to give. A Minister can also
be
asked questions about his extra-statutory official activities (for example
informal consultations with board chairmen) if they come to the
notice
of M.P.s. The more difficult cases - and the pegs on which the majority
of questions about nationalized industries are hung - are questions
about
whether the Minister proposes to give (or why the Minister has not given)
certain directions of a general character to a board in the national interest
and questions asking the Minister to obtain statistical information from
a
board. The former type of question often relates to a matter of marginal
may be strictly admissible but tends to involve the
generality; the latter
staff of the boards in a large amount of work. (Members can and do
address still more questions direct to the chairmen of the boards. 62
) The
insulation of the boards from political accountability through
questions
to Ministers is therefore far from complete. And question time in
the
House of Commons is the cockpit of party conflict.
Parliamentary debate Debate on the conduct of a nationalized industry
.

may take place on public bills (especially bills increasing a corporation’s

borrowing powers or reconstructing the organization of the industry), on
private bills promoted by one of the corporations and on subordinate
legislation concerning the industries; on substantive motions to discuss
a particular matter, or on a supply day (where the topics for debate are
chosen by the Opposition), or on the annual reports and accounts of the
corporations after they have been laid before Parliament, or on the reports
of the Select Committee on Nationalized Industries; or a private member
may lead a brief dehate on the affairs of a public corporation on the daily

60. See generally D. N. Chester and Nona Bowring, Questions in Parliament.

pp. 301-5.
61. First Report of the Select Committee on Nationalized Industries for 1967-8
(H.C. 371-1 of 1967-8), paras. 852-3. Out of sixty-four questions in 1966-7, asking
for Ministers to give ‘general directions* to boards, forty-six were answered though
some of them trespassed on matters of day-to-day management.
62. In 1966, 550 questions were tabled on British Railways alone in the two
Houses;
the Board had to reply to 246 of them. M.P.s also sent over 1100 letters to thcdiairaian
of the Board: loc. cit., para. 856.

Public Boards and Nationalized Industries 215

 motion for the adjournment of the House of Commons. The rules of
procedure governing debate are generally less restrictive than those
governing the scope of parliamentary questions, and the issues raised may
range beyond the area of ministerial responsibility.

63
Select committee on nationalized industries This investigatory
. com-
mittee of the House of Commons was first set up in 1951. In 1955 was
it

reconstituted with terms of reference so absurdly narrow that the com-

mittee reported that there was nothing that it could usefully do. In 1956
it was given new terms of reference, empowering it to examine the reports

and accounts of nationalized industries whose boards were appointed by

Ministers. By 1977, Cable and Wireless Ltd, the Independent Broad-
casting Authority, the Horserace Totalisator Board and certain functions
of the Bank of England had been brought within its terms of reference,
but its general remit is confined to statutory bodies whose annual receipts
are not wholly or mainly derived from Parliament or the Government.
The Atomic Energy Authority and the British Broadcasting Corporation
remain outside its field of inquiry. Since 1974 the Committee has been
appointed for the duration of a Parliament, and has some eighteen mem-
bers, selected in accordance with party strengths jn the House. The chair-
man is a backbencher on the Government side of the House. Most of its
members have had specialized knowledge of industry or management. Like
other select committees of the House, it has power to take evidence and
compel the production of witnesses and documents. It has no regular
- research staff, but is advised by senior Treasury officers and has engaged

special consultants to assist in some of its inquiries.

During the course of a session it will examine and report on the work
of one or two of the boards. From 1966 to 1968 it conducted an exhaustive
inquiry into ministerial control and published a lengthy report with
detailed recommendations, not all of which were acceptable to the Govern-
ment. It hears evidence from the chairmen and other members of the
64
.

governing boards, senior officials from the sponsoring Departments, and

occasionally from Ministers and outside experts. Despite a measure of
discontinuity in its membership, the Committee has itself acquired a good
deal of collective expertise, and it is an essentially non-partisan body. It

has performed useful services in familiarizing M. P.s and interested mem-

bers of the public with what goes on within the industries, making those
who run the industriesmore conversant with and responsive to informed
outside opinion, and from time to time offering constructive criticisms

63. See David Coombes, The Member of Parliament and the Administration ; A. H.
Hanson in The Commons in Transition (ed. Hanson and Bernard Crick), ch. 4.
64. See note 49 above.

21 6 The Executive
and recommendations for reform. It has also helped to lower the political
temperature of the discussions about the nationalized industries; and it
has provided a model for new specialized scrutinizing committees of the
House dealing with aspects of governmental activity. Despite the increased
burden that its work has cast upon the senior staff of the industries, it has
justified its existence in a properly unspectacular way.

Other controls. The Government has appointed, over the years, ad hoc
inquiries, headed by independent experts, to examine and report on aspects
of the nationalized coal, gas and electricity industries and the nationalized
airlines. Some of these reports have been followed by statutory reorgan-
ization.
The accounts of the nationalized industries (apart from atomic energy)
are not audited by the Comptroller and Auditor-General, but they can be
examined by him in conjunction with the Public Accounts Committee of
the House of Commons, since they arc required to be laid before Parlia-
ment. The expenditure and administration of those public corporations
(such as the BBC) which are subsidized out of moneys provided by Par-
liament are also subject to scrutiny by the Expenditure Committee of the
House. 65 In practice these committees, which have had more than enough
work to do, have paid little attention to those nationalized industries
within the jurisdiction of the special Select Committee.
The nationalized electricity, gas and inland transport bodies have
national and area consultative committees or councils; the Post Office
has a Post Office Users’ National Council. These associated bodies, mainly
appointed by the superintending Minister, have no executive powers; in
general - there is no fixed pattern - their functions are to represent the
consumer interest, to receive and consider complaints by members 01 uio
public, and to advise the Minister or the relevant board on matters referred
to them or in some cases on their own initiative. The membership of area
electricity and gas consumers’ councils has* to include representatives
nominated by local authority associations. Under the Gas Act 1972 local
authority representation on regional consumers’ councils is substantial,
and the national consumers’ council includes the chairmen of regional
-

66
councils. The councils and committees make annual reports which are
published. The general consensus of opinion is that as guardians of the
interests of consumers these bodies have not fulfilled a conspicuously sig-
67
nificant function; in a large report in 1971, the Select Committee on

65. For these committees, see pp. 279-80.

66. ss. 8-13, Sched. 3.
67. J. A. G. Griffith and H. Street, Principles of Administrative Law (5th edn), pp.
316-21; J. F. Garner, Administrative Law (4th edn), pp. 335-9.

Public Boards and Nationalized Industries 217

 68
Nationalized Industries put the point more forcefully. Nevertheless, in
September 1970 objections by the Post Office Users’ National Council to
certain proposed increases in postal charges were followed by a
formal
ministerial directive to the Post Office not to impose them. The Iron
and
Steel and Industrial Coal Consumers’ Councils have been wound
up in
69
compliance with Community obligations.
Yet there is a real dilemma: watchdogs whose bark is feeble and whose
bite is imperceptible are hardly worth keeping; but the nationalized
industries, already subjected to a depth and range of public scrutiny to
which no privately owned industrial undertaking has to submit, are under-
standably reluctant to encourage the development of more effective over-
70
sight of their operations.
The position of the broadcasting authorities is different. The BBC has
an appointed but independent General Advisory Council; the IB A also
has a number of specialized advisory committees on such matters as
religious and educational broadcasting, the maintenance of advertising
standards and local commercial radio broadcasting. Complaints are dealt
with primarily by internal procedures. The BBC has constituted a high-
powered independent Programmes Complaints Commission to consider
'
representations by dissatisfied complainants and the IBA has set up a
71
small, but equally effective, Complaints Review Board.

68. H.C. 514 (1970-71) {Relations with the Public). The Government accepted some
of the committee’s recommendations designed to give the councils more autonomy,
but rejected the suggestion that transport users’ consultative committees should have
power to consider railway fare increases and closures as being inimical to efficiency;
(Cmnd 5067) (1972).
69. European Communities Act 1972, Sched. 3, Part IV. The Domestic Coal Con-
sumers* Council is recommendations of the
to continue, but in accordance with the
Select Committee (above) the National Coal Board will cease to be represented on it.
70. Representative expert bodies may, however, perform valuable advisory functions,
cf. the advisory Freight Integration Council established under Part I of the Transport

Act 1968. See also Consumer Consultative Machinery in the Nationalized Industries
(HMSO, 1968).
71. See Report of the Committee on Privacy, Cmnd 5102 (1972), 219-49; Independ-
ent Broadcasting Authority Act 1973, s. 10, re-enacting earlier legislation.

218 The Executive

 Part Three
Parliament and Legislation

Chapter 10 deals first with the historical evolution of Parliament, then

with some of the basic rules about the working of Parliament (for
example, adjournment, prorogation and dissolution), and finally with the
general functions of parliamentary institutions within the scheme of the
Once again we observe the close interrelationship of
British constitution.
the Executive and the Legislature. But although the Government is the
dominant force in Parliament and although legislation is primarily a

function of the Government in office, it is an oversimplification to speak

of Cabinet or Prime Ministerial dictatorship.
The next two chapters are about the House of Commons. First there
are the rules relating to the right to vote, the delimitation of
constituencies (a controversial topic), the conduct of electoral campaigns
and the system of voting (with a comment on some alternative systems),
legal disqualifications for membership, the selection of candidates, and
ways of disputing the validity of elections. Second, we shall consider the
functions and procedure of the House of Commons, including the
process of legislation, discussion of financial matters, scrutiny of policy
and administration, and the roles of backbenchers. In these two chapters
we do not ignore the roles of national political parties. Nor can we possibly
ignore the constitutional implications of accession to the Communities.
Chapter 12 includes comments on Community legislation, the effects of
Community membership on financial legislation, and the importance of
improving our rudimentary techniques of scrutinizing the work of
Government (and now the work of the Communities) by specialized
committees.
There follows a chapter on the House of Lords and the means of
resolving conflicts between the two Houses; this includes a review of
recent changes in the membership and functions of the upper House, and
comments on the imaginative but abortive reform scheme of 1968-9.
In chapter 14 we are on well-trodden ground - the privileges and
immunities of the Houses of Parliament and of their members acting in
their capacity as members. Two select committees of the House of
Commons have fairly recently recommended some modest reforms in the
law of parliamentary privilege, but the House is Very slow to act in these
matters.
Part Three concludes with a chapter on subordinate legislation
(mainly legislation by Ministers under powers delegated by Act of
Parliament). Delegated legislation could alternatively have been
discussed in Part Six of the book (* Administrative Law*), but it has been
placed here because it is legislation and, like most of Parliament’s own
general legislative output, it is initiated by Ministers. We shall be
particularly concerned with the special safeguards against the abuse of
delegated powers. Attitudes towards the dangers inherent in delegated
legislationhave often been excessively alarmist - a point underlined in the
some recent developments, and in particular
course of this chapter. But
accession to the Communities, have brought the need for adequate
safeguards into the foreground once again.

220 Parliament and Legislation

Chapter 10
Parliament:
Background and Framework

Evolution

British institutions are typified by continuity. The hereditary monarchy

1
well as to the
and many of its trappings belong to the Middle Ages as
administration of justice, the House of Lords as an appellate
present. In the
the High Court,
body, the Queen’s Bench and the Chancery Divisions of
traceable to medieval
the justices of the peace and the jury are all clearly
and successor, the Cabinet,
institutions. The lineage of the Privy Council its

is more obscure, but at least an interrupted chain linking them with the
Parliament
medieval King’s Council is discernible. And the history of
goes back to the thirteenth century.
body,
Today the word Parliament is still ambiguous. As a legislative
to a bill
Parliament is the Queen in Parliament — the Queen assenting
or by the
passed by the House of Lords and the House of Commons,
Parliament Acts procedure. But the word
Commons alone under the
‘Parliament’ is often used to mean simply the two Houses. And
the term

‘member of Parliament’ normally means a member of the House of

in the
Commons. This element of ambiguity is less conspicuous than
Middle Ages. At Parliament is recognized as a political institution
least
regulated by detailed rules governing its structure,
membership and func-
tions. As we have noted, in its earliest days Parliament was not an insti-
2 - Parliament - with a
tution but a colloquy the King and his Council in
structure, meeting irregularly and
fluctuating membership and an inchoate
for a variety of reasons.
The medieval Parliament was, in a sense, a national assembly, m which
.

prelates and the com-

the several estates of the realm, the nobles, the
person or through their representatives. But
monalty, were present in
national assemblies which were not called Parliaments;
there were early
till the early years of the fourteenth
century there were national
and at least
1. Though the early English monarchs were elected from within the hereditary royal
h S
Constitutional Ideas in the
See p. 69. See generally, S. B. Chrimes, English
°2.

Helen Cam, Law-Finders and Law-Makers in Medieval

Fifteenth Century, ch. 2;
ch. 6.
England ch. 7;
,
Taswell-Langmead’s English Constitutional History (11th edn),

Parliament: Background and Framework 221

 assemblies called Parliaments to which representatives of the Commons
were not summoned. Such an assembly might be convened because the
King needed to consult a wider gathering of notables on a matter of
State than would be present in his Great Council or Inner Council; or
because the King had to raise money and found it expedient to rest his
exactions on a broad-based body of consent; or because he wanted to
promulgate new laws (though there was at first no necessary connection
between legislation and Parliament); or because he wanted to fortify his
own position against over-mighty subjects; or because other notables
wished to fortify their own position against their rivals and the King. The
Model Parliament of 1265 was summoned by Simon de Montfort in the
* name of the captive Henry HI.
To 1265 can be traced the origin of a House of Commons; though
more than a century was to pass before the Commons were accepted as
being effectively equal to the Lords as a constituent element in Parliament,
and not until early Tudor times was there a clearly defined and funda-
mental structure of two separate Houses, forming an institution quite
distinct from the King’s Council. Montfort’s Parliament included the
noblemen, the bishops and abbots (the Lords Temporal and Spiritual),
and the Commons - two knights from each shire, elected by the ancient
county courts, and two citizens or burgesses elected by each city or
borough. Thus the Commons represented territorial communities; and
the ‘knight of the shire was the connecting link between the baron and the
shopkeeper’. 3 The Commons would attend upon their betters in a humble
capacity; but before the end of the reign of Edward III (1327-77) they
had asserted themselves, claiming rights to consent to taxation, to concur
in new legislation, even to impeach the King’s Ministers; and in 1376 they
elected their first Speaker. In the reign of Richard II they became still
more aggressive, attacking Ministers and claiming privileges of freedom
of speech4 and freedom from arrest. But not until the accession of James I
(1603) were they again to play so pugnacious a role in the constitution.
In the fifteenth century the authority of Parliament and its constituent
elements fluctuated amidst the turmoil of baronial revolt and civil war.
But it must be understood that throughout the medieval period Parliament
was as ihuch a court as a deliberative or legislative body. The House of
Commons itself was never a court; but the Lords in Parliament, as lineal
successors to the Great Council, were a superior court of record, enter-

3. T. B. Macaulay, History of England vol.

, 1, p. 32. Ecclesiastical proctors, elected
representatives of the lower clergy, also sat with the Commons for about a hundred
years but withdrew into convocation before 1400.
4. The, first such claim was made in respect of Richard Haxey, who was not an
elected member.

222 Parliament and Legislation

 taining bills, petitions and appeals, and acting as judges in cases of
impeachment by the Commons. The House of Lords today is the highest
appellate court in the country, as the High Court of Parliament was in the
past.
Ifwe view Parliament at the accession of Elizabeth I, we shall find two
distinctHouses. The Lords now consisted of hereditary peers and bishops;
royal advisers who were not noblemen had been excluded, and the abbots
had been ousted when Henry VIII dissolved the monasteries. The member-
ship of the Lords was only about a hundred. The Commons was a larger
body; it had been inflated by the creation of new boroughs by the Crown
and the integration of Wales within the realm. There were still two knights
for each shire, but since 1430 they had been elected by 40s. freeholders.
Each borough had two members; the franchise varied according to local
charters and customs. There was a residential qualification for members
of the Commons, but it was frequently ignored. Property qualifications for
members were low; they were to be raised to an inordinately high figure
in 1710. Formal Commons Journals were started in 1547.
We have already touched upon the struggles between King and Parlia-
ment under the early Stuarts, the Revolution Settlement following the
deposition of James II, and the gradual ascendancy of the Cabinet after
the Hanoverian succession. This is not a study in constitutional history,
and so we shall pass to a statement of some of the basic rules concerning
Parliament. Of the detailed rules relating to the franchise, elections, and
membership of the two Houses, and the law and practice regulating their
functions, interrelationship and privileges, we shall have more to say in
later chapters.

Some basic rules

Frequency oj Parliaments

Even after Parliament had become established as an institution of govern-

ment, meetings of Parliament were irregular and the duration of meetings
was apt to be short. Elizabeth 1 (1558-1603) maintained good relations
with her Parliaments, but they were sitting for less than six months of her
entire reign. James I did without a Parliament from 1614 to 1621. He was
surpassed by his son, Charles I, who ruled without Parliament from 1629
to 1640. James II prorogued Parliament a few months after his accession
in 1685, and never summoned it to meet again.
The Bill of Rights 1689 provided that Parliament ‘ought to be held
frequently’. By virtue of the Meeting of Parliament Act 1694 (which is
still in force) not more than three years must elapse between the dissolution
of one Parliament and the meeting of its successor. In practice, and by

Parliament: Background and Framework 223

 convention, Parliament must be summoned to meet each year. The most
remunerative taxes and grants of supply to the Crown are provided by
Act of Parliament annually; and authority for the maintenance of the
army and its discipline requires annual renewal by the authority of both
Houses. 5

The two Houses The House of Commons is a wholly elected body; the
.

House of Lords is wholly non-elected. Since the late Middle Ages it has
been an accepted rule that the two Houses meet, deliberate and vote
separately. There is no statutory or other provision for joint sessions,
though for certain purposes there can be joint select committees. A bill
may be introduced in either House unless it is a Finance Bill (authorizing
taxation) or a Consolidated Fund or Appropriation Bill (authorizing
national expenditure), in which case convention and the privileges of the
Commons require that it be introduced in that House and by a Minister.
Other money bills may now be introduced in the Lords (H.C.S.O. No.
58A). But it is a constitutional convention, and one of fundamental
importance, that every amendment or motion to authorize central
government expenditure, or to increase or impose a tax, must have the
Queen’s recommendation 6 - that is to say, it must be introduced or moved
by a Minister. This necessarily implies that the power of the purse belongs
to the Government and not to private members. Hence, if a bill introduced
by a private member requires the expenditure of public money for the
fulfilment of its purposes - and it does so require more often than not - the
member must be able to persuade a Minister to move a financial resolution
in the House; otherwise the bill cannot be passed. No such restriction
applies in the United States Congress or in a number of other foreign
legislatures.
The customary common-law rule is that a bill cannot become law unless

ithas been passed by both Houses and assented to by the Queen. Under
the Parliament Acts 1911 and 1949 most classes of bills may, after a period
of delay, be presented for the royal assent, although they have not been
passed by the Lords. 7

Duration ofa Parliament

In 1694 itwas enacted that no Parliament was to last more than three
years. This provision was repealed by the Septennial Act 1715 (passed in
the state of alarm engendered by the first Jacobite revolt) which extended
See above, p. 196.
5.
These rules are partly embodied in standing orders of the House (S.O. Nos. 58
6.
58A (August 1971), 89-91).
7. See pp. 294-7.

224 Parliament and Legislation

 the maximum duration of a Parliament to seven 'years. The Parliament
Act 1911 reduced this period to five years (s. 7), and laid it down that the
new procedure whereby a bill could be presented for assent without the
Lords’ consent was not to apply to bills to prolong the life of Parliament
(s. 2(1)); these rules are still in force. Parliament mqy, however, prolong

its own life by an Act passed in the normal manner. Thus, the Parliament

elected in 1910 was prolonged by annual Acts during^the First World War,
and was not dissolved till November 1918; the Parliament elected in 1935
was similarly prolonged during the Second World War and was dissolved
in June 1945. An attempt by a Government to procure the deferment of a
General Election in any situation other than one of armed conflict would
provoke a serious constitutional crisis.
Parliament may be, and nearly always is, dissolved by the exercise of
the royal prerogative before its five-year term comes to an end. We have
already considered the constitutional conventions regulating the exercise
of this prerogative.* The main practical effect of these conventions (save
in those circumstances in which the Queen is entitled to refuse a request
for dissolution) is to enable the Prime Minister to choose the most ad-
vantageous, or least disadvantageous, date for a General Election. The
fact that this power lies in his hands tends both to enhance his stature
within the Government and to rally the ranks of party waverers once it is
suspected that a dissolution may be imminent. If the power to dissolve
were to be eliminated (so that we had Parliaments of fixed duration) or
narrowly restricted, one could expect party discipline within the House of
Commons to be more difficult to enforce.
The modern practice is for the Prime Minister to announce the date of
the dissolution and election (after he has tendered the necessary advice to
Her Majesty) about ten days before the actual dissolution. Dissolution is

effected by a royal proclamation which also names the date

in Council,
for the summoning of the new Parliament; under electoral rules, this
must be not less than twenty week-days after the dissolution. In practice
polling day will be about a month after the announcement of the intended
dissolution, 9 and a couple of weeks will elapse thereafter before the new
Parliament meets.
The proclamation is followed immediately by an Order in Council,
directing the Lord Chancellor to issue writs to the returning officer (who
will be the mayor pr chairman of a local authority or the sheriff of a
county) in each constituency to cause an election to be held on the day
named, and writs of summons to individual peers and bishops to attend
the meeting of the new Parliament.
8. See pp. 103-6.
9. See R. L. Leonard, Elections in Britain , pp. 7-8.

Parliament: Background and Framework 225

 The commencement of a Parliament is accompanied by picturesque
ceremonial. Parliament is formally opened by Lords Commissioners in
the House of Lords. The Commons repair to their own chamber to elect
a Speaker and swear in members. The following day or shortly afterwards,
Her Majesty attends in person to read the Queen’s speech in the House of
Lords; 10 this speech is prepared for her under the direction of the Prime
Minister, and outlines the Government’s legislative programme for the
session and its broad policies. The Commons are present at the bar of the
House of Lords. The main substantive business of the new Parliament
begins with a general debate in each House on the address in reply to the
Queen’s speech.
At common law, Parliament was dissolved automatically by a demise
of the Crown (the death or abdication of the monarch). This rule was
abrogated by statute in 1707. Under the present law 11 the effects of a
demise of the Crown are: (i) the two Houses are to meet immediately if
prorogued or adjourned; and (ii) if the demise of the Crown occurs while
Parliament is dissolved, the old Parliament is to meet and, subject to a
further dissolution, may continue in being for six months. This could still
lead to a ridiculous anomaly, if a new House of Commons had already
been elected but had not yet met.

Sessions: prorogation and adjournment . It is the invariable custom for

the of a Parliament to be divided up into a number of sessions. These
life

are usually of about one year’s duration, though there is no fixed prac-
tice. If sit at all for a full year, some vital Acts
Parliament were not to
which have renewed or passed annually would lapse. A speech from
to be
the throne is read by the Queen in the Lords, with the Commons in
attendance, at the opening of each session. Typically, a session will begin
and end in October and will be interspersed with adjournments each night,
at weekends, at Christmas, Easter and Whitsun, and during the long
summer recess beginning late in July. It is possible for the Commons to
be sitting while the Lords are adjourned. Nowadays the Commons sit for
about 160 days altogether during a calendar year. Each House determines,
on tiie Government’s initiative, on which dates it will adjourn and re-
assemble.
A session of Parliament is terminated by prorogation, a prerogative
act; a short formal speech is made on behalf of the Queen, summarizing
the work done during the session, and then Parliament stands prorogued
till a named date, which (unless prorogation precedes a dissolution) will be

10. If sheunable to attend personally, the Lord Chancellor reads it on her behalf.
is
11. Succession to theCrown Act 1707; Meeting of Parliament Act 1797; Represen-
tation of the People Act 1867.

226 Parliament and Legislation

only a few days later, when a new session will be opened by the reading
of the Queen’s speech. These dates are decided on the Government’s
advice. Prorogation has the effect of causing all public bills that have not
yet passed into law to lapse; if they are to be reintroduced in the new
session they must go through all their stages again. Private bills (i.e. bills
of a local or personal character) are carried forward into the new session
by resolution of each House, so that they can be continued at the stage
they have already reached. The main casualties of a prorogation will be
public bills introduced by private members (private members’ bills) but
occasionally bills introduced by Ministers (Government bills) will lapse
too. Prorogation therefore serves two purposes: to induce the Government
to manage its legislative programme efficiently, and to discourage back-

benchers from getting above themselves.

The reason why Parliament is adjourned, instead of standing prorogued,
in midsummer is strictly practical. In the first place, if it becomes necessary
to recall a prorogued Parliament to deal with a matter of unexpected
urgency, a royal proclamation has to be issued. It is simpler and may be

more expeditious to reassemble an adjourned Parliament; this can be done

by the Speaker and the Lord Chancellor acting on the Prime Minister’s
request
12
Secondly, at the end of a summer recess it is often desirable to
.

spend a few days dealing with unfinished legislative business (for example,
considering late Lords’ amendments to Government bills), debating an
important issue that has arisen during the recess or making policy an-
nouncements before the session terminates.

The role of Parliament

It has often been said that Parliament has three main constitutional
functions: making laws; controlling national expenditure and taxation;
and a third class of function, comprising criticism of national policy,
scrutiny of central administration, and procuring the redress of individual
grievances.
A preliminary difficulty with this classification is that the word ‘Parlia-
13
ment’ is being used in different senses There are more serious difficulties
.

12. provided for in standing orders of the House of Commons

This practice is

(S.O. No. 122) and House of Lords. The Speaker and the Lord
sessional orders of the
Chancellor are not obliged to comply with the Prime Minister’s request, but it would
be remarkable if they were to refuse unless no substantial reason for the request was
supplied.
Parliament must also be summoned to meet within five days if a royal proclamation
of a state of emergency is made under the Emergency Powers Acts 1920 and 1964.
See ch. 23.
13. See p. 221.

Parliament: Background and Framework 227

inherent in any classification by reference to function when expressed in
legal or institutional terms. The familiar classification is too much at
variance with the facts. Legislation is primarily a function of Government.
Even if one ignores the mass of non-parliamentary or subordinate legis-
lation made by the Queen in Council or Ministers, a very large majority
of Government bills, introduced into Parliament by Ministers, are passed
into law substantially in their original form. In 1948-9, 102 Government
bills were introduced and 101 were passed. In 1970-71, seventy-seven
Government bills were introduced and all but one were passed. The year
1969 happened to be a particularly bad one for the Government’s legis-
lative programme; exceptions do not prove rules, but the general rule
stands out plainly enough. In the three sessions from 1968 to 1971, forty
out of 293 private members’ bills actually introduced became law. 14 Again,
Parliament ‘controls’ national finance in the formal sense that its sanction
is needed for the imposition of taxation and the authorization of ex-

penditure; but bills authorizing public expenditure are dominated even

more than the content of ordinary legislation by the will of the Govern-
ment, and in particular the views of the Treasury. A
lot of time in the
House of Commons is spent on debating what are in form financial
matters; but the House has largely given up the pretence that it has real
authority over these measures, and most debates on public expenditure
concentrate on aspects of policy and administration to which questions of
expenditure may be only peripheral.
The deeper one digs, the bigger yawns the gulf between appearance and
reality.Neither Parliament nor the House of Commons acts as a collective
entity save on special and rare occasions. In recent years political scientists,
though prone to disparage or be ignorant of legal rules, have rightly
concentrated their attention on party organization and activity in and out
15
of Parliament the role of pressure groups operating on Ministers, civil
;

servants, partiesand M.P.s; the potential expansion of select scrutinizing

16
committees; the meaning of public opinion; and the nature of General
Elections to the House of Commons. In other words, parliamentary insti-
tutions cannot meaningfully be considered in isolation from the forces
which influence decisions; and some of those decisions may not even
require to be formally registered by Parliament. Having made this point,
we must reiterate that this is a book about constitutional law and not a
general work on British government. Our main emphasis must, therefore,

14. Corrected figures, taken from Burton and Drewry (1972) 25 Parliamentary
Affairs 123 at 126.
15. The last major work written by Sir Ivor Jennings, the most eminent of modern
British constitutional lawyers, was a three-volume treatise on Party Politics
.

16. See especially David Butler and Donald Stokes, Political Change in Britain
.

228 Parliament and Legislation

 :

be placed on aspects of*parliamentary institutions which are not necessarily

the most important.
Against this complex background, the question: What is the consti-
tutional role (or what are the functions) of Parliament ? becomes altogether
too ambiguous. Answers will depend on whether one is thinking of the
Queen in Parliament, the two Houses, or the House of Commons alone;
on whether one is thinking of all the members on the Government side,
or of those members on the Government side who are not Ministers, or of
members on the Opposition side; on whether one is thinking of the political
activities of members outside as well as inside Parliament. One can set out
the following general propositions

1. The House of Commons gives the Government a legitimate foundation.

The Prime Minister must be that person who is best able to command the
support of a majority of members of the House; he is normally the leader
of the majority party; the majority party in the House is identified by the
party afiiliations of the successful candidates in individual constituencies
at a General Election. The Prime Minister forms a Government; 17 the
members of the Government must be or become members of one or other
House. Thereafter supporters of the Government in the House of Com-
mons sustain it in office by thwarting the Opposition’s motions of censure

and enabling the Government to enact its legislative programme.

2. The role of the Opposition in the House of Commons must be con-
ditioned by the constant need to present itself to the electorate as the
alternative Government. This objective can be frustrating when the next
General Election may be
four years distant. But it will not be thought of
as unattainable, for themain political parlies arc broadly based; they arc
not reflections of a permanent majority or minority group (the situation
in Northern Ireland was essentially different); there is a sizable iloating
vote; we have free elections; only twice this century has the same party
18
won three consecutive General Elections.To say that the function of the
Opposition is to oppose would be an over-simplification; a substantial
majority of Government bills are passed without any move to reject them,
and there is a large area of common ground between the two main parties
on matters of national policy. The Prime Minister often gives the Leader
of the Opposition confidential information and consults with him (or her)
privately on non-party matters of national concern. But in fulfilling its role

17. The Government, when formed, does not (as in some countries) have to obtain
a formal parliamentary vote of confidence.
18. The Liberals in 1906 and 1910 (twice), though in the 1910 elections they failed to
obtain an overall majority of scats in the Commons and retained office only with the
support of minority parties; and the Conservatives in 1951, 1955 and 1959,

Parliament: Background and Framework 229

the Opposition will frequently attack the Government in debate and at
question time on issues of principle and detail. Parliament is the only
public forum in which Ministers are obliged to present reasoned (and
sometimes unprepared) answers to these criticisms. And indirectly the
Opposition may influence major policy decisions. A Government will
sometimes adopt or adapt, without acknowledgement, popular Opposition
policies (for example, on immigration) in order to improve or retrieve its
own standing in the eyes of the electorate.
of the political complexion of the Government in office, the
3. Irrespective
Conservative Party has maintained a large permanent majority in the
House of Lords. But because of the peculiar composition and limited
powers of the upper House, the roles of Government and Opposition in
the Lords cannot be considered in the same terms as in the Commons.
Perhaps incongruously, it is possible to review the constitutional functions
of the House of Lords more coherently than those of the House of
Commons. 19
4. In both Houses, and particularly in the Commons, the Government’s
policiesand its conduct of administration are subjected to open scrutiny;
and adverse criticism does not come only from members on the Opposition
side. To this extent Parliament is a ‘grand inquest of the nation’. Voting
figures in the division lobbies tell only part of the story. Criticism often
takes the form of putting down detailed amendments to Government bills;
these amendments are not necessarily, or indeed usually, prompted by
considerations of party politics and Ministers will seldom be able to
afford merely to brush them aside. Fuller investigation of aspects of policy
and administration will be a matter for select scrutinizing committees.
5. The House of Commons provides a forum for ventilating the grievances
of individuals,localities and organized groups. An M. P. may raise such an
issue by asking a parliamentary question, raising the matter in debate
(especially the debate on the daily adjournment of the House), putting
down, amendments to bills, or seeking to introduce a private member’s
bill himself. However, effective redress for injustices suffered by individuals

at the hands of the Administration is more likely to be achieved outside

Parliament, by members’ letters and other representations to Ministers,
or through an inquiry by the Parliamentary Commissioner for Adminis-
tration into a complaint of maladministration referred to him by an M. P.,
through a more formal committee or tribunal of inquiry or by statutory
machinery for appeal or by judicial review.
6. The House of Commons links the general public, local and national
political parties, organized interest groups, private members and Ministers

19. See ch. 13.

230 Parliament and Legislation

in a network of relationships. The House is a centre for intercommuni-
cation. So important is this role that if a House of Commons did not
exist, one would have to be invented.

7. The publicity given to its proceedings, moreover, tends to enhance public

interest in public affairs, and to educate and inform by the wider diffusion
of arguments and statements of policy. This tendency must not be
facts,
exaggerated. Few people read Hansard in England only three daily news-
;

papers, with a total circulation of barely two millions, offer even a moder-
ately adequate coverage of parliamentary proceedings; most of the
electorate now obtains its information about current affairs mainly from
television programmes, and party political broadcasts are not popular
with viewers except during an election campaign; professions of intent by
politicians are regarded with widespread scepticism; because the outcome
of divisions in the House of Commons is normally a foregone conclusion,
parliamentary debates fail to attract the attention given to contests where
the result is Perhaps the regular sound broadcasting of proceed-
in doubt.
ings in both Houses (which is due to begin in 1977) will attract greater,
and direct, public attention.

8.The promotion of private bills in Parliament is still the principal means

whereby local authorities and other public bodies obtain special legal
powers beyond those granted by the general law of the land. In the eigh-
teenth century, and for a large part of the nineteenth, the private Act was
the most common form of legislation. For the past hundred years or so, the
public general Act has taken over the leading role, but private legislation
is still important. Some of these themes will be developed in the course of
the next three chapters. 20

20. For a helpful comparative study, see K. Bradshaw and D. Pring, Parliament and
Congress (1972).

Parliament: Background and Framework 231

 Chapter 11
The House of Commons:
Elections and Members

The modern electoral system

The franchise
In order to exercise the franchise in a parliamentary constituency, a
person must be included in the electoral register for that constituency.
The register is compiled annually, on the basis of information provided
by householders, by the registration officer, who will be the clerk to a
local authority. A person, though legally qualified to vote in every other
respect, will not be permitted to vote if his name is not on the register.
To be included in the register, a person must 1

1. be eighteen years of age, or be due to attain his eighteenth birthday

within twelve months of the publication of the register, thus becoming
eligible to vote in an election held after his birthday;

2. be a British subject or a citizen of the Republic of Ireland;

3. not be subject to any legal incapacity; 2
and
4.be resident in the constituency on the qualifying date (10 October in
Great Britain) 3 for compiling the register.

The following points should be noted:

(a) It is a criminal offence for a person to vote in more than one con-
stituency .even though his name appears on the electoral register for each
constituency. Again, it is an offence to vote if one knows or has reasonable

grounds for believing that, notwithstanding one’s appearance on the

electoral register, one is subject to a legal disqualification. Hence although
absence from the register is conclusive of inability to vote, presence on the
register is not conclusive of entitlement to vote.

(b) British subjects include not only persons ‘belonging’ to the United

1. Representation of the People Act 1949, s. 1, as amended by s. 1 of the Represen-

tation of the People Act 1969.
2. See p. 233-4.
3. Electoral Registers Act 1953.

232 Parliament and Legislation

Kingdom but all citizens of the United Kingdom and Colonies, and
itself
all who are citizens of independent Commonwealth countries in
persons
terms of their own laws. The fact that the laws of many independent
4

Commonwealth countries do not designate their own citizens as British

subjects is immaterial; what matters is the definition of British subject in

United Kingdom law. Citizens of the Republic of Ireland (which is not a

Commonwealth country) are not British subjects in United Kingdom law,
5
but they are excluded from the definition of aliens and are accorded much
the same rights and privileges in the United Kingdom as citizens of
Commonwealth countries. 6
(c) To be included in the register, a person who is otherwise qualified
needs to be ‘resident at an address in the constituency only on the qualify-
’

ing date. No period of residence is necessary, except in Northern Ireland

where three months’ continuous residence is required. A person ought
7
not to be put on the register unless his ordinary place of residence is in
the constituency. However, university students pursuing their courses of
study are entitled to be registered in the constituency where they are resid-
ing for that purpose. 8
(d) Persons with service qualifications (members of the armed forces.
Crown servants and British Council officials overseas, and their spouses
living overseas with them), and merchant seamen, are entitled to be
treated as they were resident in a constituency on the qualifying date,
if

provided that they would have been so resident *but for their assignment
elsewhere. 9

Disqualification. The following classes of persons are not entitled to exercise

the franchise, even if their names appear on the electoral register.
10
(i) Aliens .

(ii) Infants (persons under eighteen years of age).

(iii) Peers, other than peers of Ireland. Abolition of this disqualification
was envisaged by the Parliament Bill withdrawn in 1969.
4. British Nationality Act 1948, s. 1(3) as amended. See pp. 406-7.
5. British Nationality Act 1948, s. 32(1).
6. See generally British Nationality Act 1948, s. 3(2); Ireland Act 1949, s. 2; and

more specifically, section 1 of the Representation of the People Act 1949.

7. prison will not be accepted as an address for the registration of a person
A
incarcerated there; nor is a mental hospital a place of residence for registration
purposes.
8. Fox v. Stirk [1970] 2 Q.B. 463. If they have a home iri
another constituency,
they can be registered there as well. They must not, of course, vote in more than
one
constituency.
9. See pp. 232, 239.
This term excludes citizens of the Republic of Ireland (see above). British pro-
10.
tected persons are not British subjects and are not, it seems, entitled to be registered
or to vote, or (probably) to be elected to Parliament.

The House of Commons: Elections and Members 233

(iv) Persons serving sentences of imprisonment. 11
(v) Persons convicted of corrupt practices at elections (who are dis-
franchised for five years); and persons convicted of illegal practices at
elections (election offences of a lesser order), who are also disfranchised
for five years but only in respect of the constituency in question. The
line drawn between corrupt and illegal not altogether
practices is

logical. To incur unauthorized expenditure to promote the election of

a candidate is a corrupt practice; to publish a false statement that a
candidate has withdrawn from the contest is an illegal practice.

The register

The registration officer must issue a provisional electoral register for the
constituency on 28 November; this is to be exhibited in public libraries
and other public buildings. Any person may object to the inclusion or
exclusion of any name by 16 December; the registration officer must hear
and determine any objection and may rectify the register accordingly. An
appeal lies from his determinations to the county court and thence, on a
point of law, to the Court of Appeal; alternatively his determination, or
that of the county court judge, may be impeached before a Divisional
Court of the Queen’s Bench Division. 12 The register for the constituency
comes into force on 16 February and is operative for any election held
there during the following twelve months.

Delimitation ofconstituencies

In the American Constitution it is laid down 13 that no state shall deny any
person within its jurisdiction ‘the equal protection of the laws’. In Baker
14
v. Carr (1962), one of the most remarkable and influential decisions ever
given by the United States Supreme Court, itwas held that the equal
protection clause implied the doctrine of ‘one man, one vote, one value’,
so that electoral districts (constituencies) established under state law for
House of Representatives had to have approximately equal
the federal
numbers of electors. This decision, and others that followed, 15 led to a
11. Representation of the People Act 1969, s. 4. Such a person may, of course, have
been correctly included in the electoral register before his term of detention began.
12. By an application, made by a party aggrieved, for an order of certiorari to
quash the determination (for example, for excess of jurisdiction) or for an order of
mandamus to compel him to perform his public duty.
13. Fourteenth Amendment, s. 1.
14. 369 U.S. 186 (1962).
15. See, for example, Reynolds v. Sims 377 U.S. 533 (1964) (principle of broadly
equal electoral districts held to govern representation in both houses of a state legis-
lature; contrast the position mthe United States Senate).

234 Parliament and Legislation

massive legislative reapportionment of electoral districts not only for
congressional elections but also at the state and local levels so as to
modify the prevailing over-representation of sparsely populated rural
areas.
No decision of a United Kingdom court could propel Parliament
willy-nilly into radical reform. The present machinery for constituency
delimitation, based on a scheme introduced in 1944, 16 is designed to work
impartially and to promote approximately equal electorates; but the last
word rests with Parliament, and politics tends to keep creeping in.
Under the House of Commons (Redistribution of Seats) Acts 1949 and
1958, four Boundary Commissions, one each for England, Scotland,
Wales and Northern Ireland, are charged with the duties of reviewing
representation in the House of Commons, and submitting to the Secretary
of State reports recommending such redistribution of seats as may be
necessary at intervals of not less than ten or more than fifteen years. As
soon as may be after they have reported, the Home Secretary must lay

their reports before Parliament, together with drafts of Orders in Council

giving effect, with or without modifications, to their recommendations for
boundary changes. The Acts thus permit the Home Secretary to vary but
not to ignore or reject the recommendations. If the draft Orders are
approved by resolutions of each House, Orders in Council will then be
made, and will have effect at the next General Election.
The chairman of each Commission is the Speaker of the House of
Commons; the deputy chairman must be a superior judge; each Com-
mission has two other members who are not to be M.P.s, and is
by senior public officials - in England, the Registrar-General and tbe
Director-General of Ordnance Survey. The Commissions arc guided by
a number of rules laid down in the Acts. When a Commission has pro-
visionally decided to recommend changes, it must give public notice of
its proposals in the constituencies concerned and invite representations to
be made to it; it may conduct local inquiries. The total number of con-

stituencies (all ofwhich are to be represented by a single member) for

Great Britain not to be substantially greater or less than 613; this
is

number is to include at least seventy-one Scottish and thirty-five Welsh

constituencies; there are also to be twelve constituencies in Northern
Ireland. The electorate of a constituency is to be as near as practicable to

16.See generally David Butler, The British Electoral System since 1918 (2nd cdn).
The Act was the House of Commons (Redistribution of Seats) Act 1944. There
original
had been no general redistribution since 1918 despite the movement of population from
city centres to suburbs. The movement was accelerated during and after the Second
World War; and new towns to syphon o(T population from the big cities were
and expanded as an act of policy.
deliberately created

The House of Commons: Elections and Members 235

a quota ascertained by dividing the total electorate within the region
covered by a Commission by the number of constituencies in that region;
deviations from the quota are permissible in order to respect local govern-
ment boundaries or for reasons of geographical dispersal. Scotland and
Wales are over-represented in strictly mathematical terms, but most of
their constituencies with small electorates are large in area, sparsely
populated and with mediocre internal communications. Northern Ireland
was under-represented at Westminster because it had its own Parliament
at Stormont. The total number of United Kingdom constituencies is not
fixed by Act of Parliament; it is currently 635. 17
Each set of proposals by the Commissions has proved controversial.
The first reports of the Commissioners, in 1948, recommended very exten-
siveboundary changes in the light of shifts in the distribution of population
since 1918; theCommission for England also deviated from the rules to
give an advantageous weightage to rural areas, which happened to be
mainly Conservative; the Labour Government redressed the balance by
introducing amending legislation to add seventeen urban seats, eight of
which were in factwon in 1950 by Conservative candidates. The 1954
reports of the Commissions were implemented in full but aroused a good
deal of local resentment. Two unsuccessful attempts were made to impugn
the validity of recommendations or draft Orders in Council in the courts. 18
For technical reasons it was not easy to see how in practice the courts
could be persuaded to go into the question of vires. 19 The 1969 recom-
mendations 20 precipitated a crisis. If they had been fully implemented, the
Labour Party might possibly have lost about ten seats at the next election,

17. By virtue of Orders in Council made under the House of Commons (Redistri-
bution of Seats) Acts.
18. Hammersmith B.C. v. Boundary Commission for England. The Times 15 December
,

1954 (attempt to obtain mandatory injunction to direct the Commission to withdraw

itsrecommendations after it had reported; held, the Commission had no power to do
this);Harper v. Home Secretary [1955] Ch. 238 (attempt to prevent draft Order in
Council, already approved by both Houses, from being presented to Her Majesty in
Council). See generally Craig [1959] Public Law 23.
19. Among the difficulties are the unavailability of injunctions against Crown
servants acting as such (Crown Proceedings Act 1947, s. 21), the fact that the courts
are fearful of encroaching on parliamentary privilege by interfering with a ‘proceeding
in Parliament’ (though this objecdon would not arise if there were a reasonable
interval between publication of the report and laymg before Parliament) and the pro-
vision of the 1949 Act (unaffected by the 1958 Act) that the validity of an Order in
Council thus made cannot be called in question in any legal proceedings whatsoever
In an extreme case a court might nevertheless be persuaded to intervene; and
(s. 3(7)).

in any event it might be possible to obtain an order of mandamus to compel the Home
Secretary to comply with his express statutory duties (see text).
20. The period between reviews had been extended to a maximum of fifteen years
by the 1958 Act.

236 Parliament and Legislation

mainly through the disappearance of depopulated urban constituencies.
Some weeks after they had been received, the Home Secretary presented
them to Parliament 21 but did not produce draft Orders in Council to give
effect to them, either with or without amendment. Instead, the Govern-
ment decided to implement them only in part, explaining that local
government areas were being subjected to a comprehensive review, that
there ought not to be too big a discrepancy between local government and
parliamentary constituency boundaries, and that it would be undesirable
to have two major delimitations within the course of a few years. The
Home Secretary introduced a new House of Commons (Redistribution of
Seats) Bill, implementing the recommendations for Greater London and a
few very large constituencies but absolving him from performance of his
existing statutory duty to give effect to the Commissions’ recommen-
dations. The Opposition and some independent critics maintained that the
22
bill involved gerrymandering The Conservative majority in the Lords
.

passed the bill but only subject to wrecking amendments. The two Houses
adjourned for the summer recess in a state of deadlock, with the Home
Secretary facing the prospect of an application to the High Court for an
order of mandamus to compel him to carry out his legal duties. When
Parliament reassembled, the Home Secretary moved compromise amend-
ments, and warned that if the Lords rejected them, he would lay all the
recommendations for constituency changes together with draft Orders
giving effect to them, but would ask Government supporters not to approve
any of them. The Lords rejected the Commons’ amendments to the bill.
The application for mandamus was withdrawn 23 the Home Secretary. ,

21. The reports were published as Command Papers, and presented to the House of
Commons (sec S.O. No. 1 19) by being placed in the Votes and Proceedings Oflicc. It
was at first claimed on behalf of the Home Secretary that they had not been * laid’ before
Parliament within the meaning of the parent Act; hence the duty to lay draft Orders
in Council at thesame time did not arise. When the reports were presented to the House
a second time, accompanied by draft Orders (see below), they were expressed to have
been laid in pursuance of the Act; again they were deposited in the Votes and Pro-
ceedings Office. It seems artificial in the extreme to contend that the first laying was
not a performance of a statutory duty but an act of obedience to Her Majesty’s
command, cf. Att.-Gen. v. De Keysets Royal Hotel Ltd [1920] A.C. 508; pp. 117-8
above. And see R. v. Immigration Appeal Tribunal, ex p. Joyles [1972] 1 W.L.R. 1390,
showing that presenting a Command Paper to the House is laying within the meaning
.of the Act.
22. See also George Brown, In My
Way, pp. 255-6r But Lord George-Brown had
already resigned from the Government at the relevant time. For a defence of the
Government’s actions, see Wilson, The Labour Government 1964-1970, pp. 678-9.
23. R- v. Home Secretary, ex p. McWhirter, The Times 21 October 1969. No order
,

was made as to costs and the Home Secretary agreed to make an ex gratia payment
to the costs of the applicant, a voter in one of the constituencies affected by the
English Commission’s recommendations. The several interesting issues raised by the

The House of Commons: Elections and Members 237

 having declared that he would comply with his statutory duty. The bill
lapsed on prorogation, and no attempt was made the following session to
override the Lords under the Parliament Acts procedure. Instead, the
reports and them were laid before the Com-
draft Orders giving effect to
mons by the Home Secretary ; and the were duly voted down
draft Orders
by the House. 24 The subsequent General Election in 1970 was therefore
conducted on the basis of the 1954 delimitation.
In November 1970 the new Conservative Home Secretary reintroduced
the draft Orders and they were given parliamentary approval. 25

Method ofvoting
The general rule is that on election day voters must go in person to the
appropriate polling station in their constituency, where they will be
handed a ballot paper listing the names of the candidates. The voter enters
a polling booth and makes a cross in a space alongside the name of one
candidate; the voter folds the ballot paper and drops it into a sealed ballot
box. The fiction that a voter chooses the most suitable candidate irre-
spective of his party affiliations was maintained by a rule precluding the
incorporation in the ballot paper of words indicating the political attitudes
of candidates - a rule which caused some difficulty not long ago in a Welsh
constituency where there were three candidates named Jones - till section 2
of the Representation of the People Act 1969 permitted the insertion of up
to six words descriptive of the candidate’s political associations.
In the celebrated case of Ashby v. White (1703) 26 it was held that the
-right to vote was in the nature of a proprietary right, and that a returning
officer refusing for improper motives to allow a qualified elector to cast
his votewas liable in damages. Under section 50 of the Representation of
the People Act 1949, no civil liability is incurred by an election officer in
respect of a breach of his official duties, though he may be criminally
liable. No election officer may refuse to give a ballot paper to a person
whose name appears on the register. If he has grounds for believing that
any such person is legally disqualified (for example, by reason of infancy,
or because he has already voted) it is his duty so to warn him if that person
;

application (for example, whether it constituted an impeachment of ‘proceedings in

Parliament’; see ch. 14) were not determined.

24. 791 H.C. Deb. 428-571 (12 November 1969). The Attorney-General, winding
up the debate for the Government, declared (col. 550) that the Home Secretary’s
actions had been ‘lawful . . sensible and wise’, and that only ‘the malicious and the
.

misinformed could be capable of taking any other view’.

25. S.I. 1970, Nos. 1674, 1675, 1678, 1680.
26. 2 Ld. Raym. 938.

238 Parliament and Legislation

nevertheless proceeds to vote though disqualified, he may be prosecuted
for an election offence.
Special arrangements are made for casting of votes by persons with
service qualifications and by persons who have applied to be registered
as absent voters. As a general rule, a service voter may vote by post or
by proxy; an absent voter (for example, one wfio is unlikely to be able
to vote in person by reason of the nature of his employment which often
takes him outside the constituency, or because of physical infirmity or
religious observance) may vote by post.
At the close of the polls (10 p.m.) the ballot boxes are transported
to a central counting station in the constituency and emptied, and the
ballot papers are counted together with postal and proxy votes. The
candidate with the largest number of votes is declared by the returning
officer to be elected. There is no requirement that a candidate obtain a
minimum percentage of the total vote to be elected.
By-elections to vacancies caused by death, resignation or other cause
fill

are conducted in essentially the same manner.

The British system of election is often called ‘first past the post*. It has
been criticized as unfair to small parties. For example, at the General
Election of October 1974, Liberal candidates obtained 18*3 per cent of the
national vote but only thirteen seats in theHouse; in those constituencies
where they had put up'candidates, the Liberals obtained an average of 18-9
per cent of the vote. The figures above speak of injustice. But the figures
tell only part of the story. A General Election is, in effect, the choice of a

Government. A party winning 48 per cent of the national vote is almost

27
certain to have an overall majority of seats in the House. Many people
who might otherwise be inclined to vote for Liberal candidates either
abstain from voting or vote for a candidate of one of the two major parties
in order not to ‘waste’ their vote; they will believe (probably rightly) that
the election of a few more Liberal members will not affect the formation of
28
the next Government. If potential Liberal voters were made to feel that
their votes would really count, the fortunes of the party might revive
dramatically, 29 at least in the short term.

27. In 1966 Labour, with 48 per cent of the national vote, won 363 seats; the Con-
servatives, with 42 per cent, won 253. In 1951, however, Labour won more votes
(48-8 per cent to 48 per cent) but the Conservatives won 321 seats to 295 and formed a
Government. The main reason for the discrepancy in 1951 was that Labour piled up
very big majorities in a number of safe scats but lost several marginal scats by very
small majorities.
28. But it might have done after the February 1974 General Election, when a
Conservative-Liberal coalition was on the cards: sec p. 151, note 17.
29. The factors operating on voters at a General Election do not usually have the
same force at a by-elcction, and some spcctucular Liberal victories at by-clections have

The House of Commons: Elections and Members 239

 ;

There is obviously a case for reforming the electoral system with a view
to reducing the discrepancy between votes cast for and seats won by a
party campaigning on a national scale. 30 The most favoured systems 31 are
the alternative vote and proportional representation. The alternative vote
is used in single-member constituencies at elections to the Australian
House of Representatives when there are more than two candidates. The
voter must place the candidates in order of preference by marking his
ballot-paper 1, 2, 3 ... If no candidate obtains an absolute majority by
counting first preferences, the candidate at the bottom of the poll is
eliminated, and
second preference votes are distributed among the
his
other candidates, and so on (if necessary) till one candidate has more than
50 per cent of the vote. The result may be that the candidate placed second
on the first count wins the seat. A closer correspondence between votes
cast and seats won can be achieved by a system ’of proportional repre-
sentation. The best-known proportional systems are the single transferable
vote (STV) and the party list system; there are numerous variants,
including mixed systems. Proportional systems require multi-member
constituencies. Under STV (which is used in elections in the Republic of
Ireland and Malta and for the Australian Senate) the voter marks his
preferences numerically against the names of candidates; where a candi-
date has obtained a large enough percentage of the total poll to ensure
that he must be elected, 32 his second preferences are redistributed among
the other candidates, and so on till all the seats are filled. The larger the
number of seats to be filled in a constituency, the more closely will their
allocation reflect the electoral support enjoyed by the various candidates.
Under the party list system in its simplest form,' each party puts up a
national list of candidates in ranking order; each voter casts a single vote

been recorded in recent years. An

avowedly regional party, campaigning only in a few
constituencies (for example, the Welsh Nationalist and
Scottish National Parties and
the sundry anti-Umonist parties in Northern Ireland), may win a number of seats
corresponding more closely to its share of the United Kingdom vote and can even
be over-represented in strictly mathematical terms.
30. Not unnaturally the Liberal Party wants immediate legislation. For a detailed
investigation see the Blake Report of the Hansard Society Commission on Electoral
Reform (1976).
31. For example, Enid Lakeman, How Democracies Vote
fuller details see, for
W. J. M. Mackenzie, J. F. S. Ross, Elections and Electors; Institute of
Free Elections;
Electoral Research, Parliaments and Electoral Systems. For a useful short critique, see
Peter G. J. Pulzer, Political Representation and Elections in Britain (2nd edn), ch. 2.
32. If, for example, four seats are to be filled in a constituency where 100,000 persons
vote, a candidate obtaining [100,000/(4 + 1)] + 1 (i.e. 20,001) votes from first
preferences will be declared elected, because it is impossible for any four other
candidates to beat him.

240 Parliament and Legislation

for one party list; a party ootaining w per ccm ui me iwuuu<u vuic wm
fill40 per cent of the seats with the candidates ranked highest in its list.
Various Western European countries use proportional electoral systems.
More often than not they bring about coalition or minority governments
because no party wins an overall majority. This is^not necessarily an un-
mitigated disaster, though in the United Kingdom coalition and minority
governments have tended to be unstable or indecisive or both. But plans
for basic changes in the electoral system founder on the combined hos-
of the two main parties. Each party believes that under the first-past-
tility

the-post system it has a good chance of winning the next (or next but one)

General Election with an outright majority; and to win an election is to

win power for four or five years. Why, then, meddle with our ancient
institutions which have served us so well for so long ? At least in this con-
text, ‘consensus politics’ are not a figment of the imagination.

Members
Before touching upon the conduct of an election campaign, we need to
say something of the qualifications for membership of the House of
Commons and the ways in which a candidate may be selected.

Disqualification for membership of the House

There are three preliminary points. First, there is no list of basic quali-
fications; there is simply a list of disqualifications. The former property
and residential qualifications for candidates were abolished long ago; it is
indeed fairly unusual for a candidate from one of the two main national
parties to be a local man, though he is often expected by his constituency
party to take up local residence when he becomes their prospective candi-
date. Secondly, some disqualifications, significant in their day, have
been
removed by statute as being obnoxious or unnecessary. All religious dis-
qualifications had been removed by 1888; the disqualification (or
lack of

qualification) of women was removed in 1918; the remaining disquali-

fications attached to Government contractors and Crown pensioners were
abolished in 1957. Thirdly, if a candidate is subject to a legal disquali-
not allowed to reject his nomination papers
fication, the returning officer is
if they are otherwise in order; his rights to
be elected and to sit in the
) by other means
33 if he is
Commons are determinable (as we shall see

elected to the seat.

33. See pp. 245-6, 251-2.

The House of Commons: Elections and Members 241

 34
The following are disqualified:

1. Aliens. For this purpose, citizens of the Republic of Ireland are not
aliens.
35
2. Persons under twenty-one years of age.
3. Persons suffering from severe mental illness. They were disqualified at

common law; the non-statutory disqualification has been supplemented

by section 137 of the Mental Health Act 1959 under which the Speaker
must be notified if a member is detained as a mental patient; if the member
is still detained as a mental patient six months later, his seat will be
vacated.
36
4. Peers and peeresses in their own right, other than peers of Ireland
37
(who are not qualified to sit in the House of Lords ).

5.Persons serving sentences for treason. A member who is sent to prison

for any other offence is now merely prevented from sitting and voting

while still serving his sentence; 38 but the House may resolve to expel him.
One serving a sentence of imprisonment for a non-treasonable offence is

not disqualified for election now. 39

6. Bankrupts. A who is an undischarged bankrupt is disqualified
debtor
for election, and a member of the House thus adjudged is disqualified
from sitting and voting when the House takes notice of the court order,
and remains disqualified for five years after his discharge, unless the court
annuls its order or, in discharging him, certifies that his bankruptcy was
not attributable to his own fault. A member who becomes bankrupt does
not automatically vacate his seat at once; the court is not obliged to notify
the Speaker of its order for six months.

7. Persons convicted of corrupt and illegal practices at elections. These

34. See Sir Thomas

Erskine May, Parliamentary Practice (19th edn), ch. 3; Hals-
bury's Laws of England(3rd edn), vol. 28, Parliament, with Cumulative Supplement.
Some disqualifications do not automatically cause vacation of the seat but debar
a member from sitting and voting while subject to the disability. In practice it is im-
possible to sit without participating in a vote; the recurrent formal resolutions passed
every day without a division will entail a unanimous vote.
35. This provision was preserved by the Family Law Reform Act 1969 which for
most legal purposes reduced the age of majority to eighteen; see s. 1(4) of that Act
and para* 2 of Schedule 2. Before 1832 several infants (including Charles James Fox)
nevertheless sat as members.
36. For the meaning of this concept, see p. 288.
See Re Earl of Antrim's Petition [1967] 1 A.C. 691.
37.
38. This appears to be the result of the amendment of s. 2 of the Forfeiture Act
1870 by s. 10 of and Part III of the Third Schedule to the Criminal Law Act 1967.
39. Whether this result of the enactment of the Criminal Law Act 1967 was intended
is questionable; cf. ss. 1, 10(2) of that Act.

242 Parliament and Legislation

 disqualifications are rather more extensive than those affecting the exer-
40
cise of the franchise by persons so convicted.
8. Clergy: a motley collection of statutory provisions, enacted at different
times to meet particular problems, disqualify some ministers of religion
but not others. Ministers of the Church of England, the Episcopalian
Church of Scotland and all other Protestant clergymen (including ministers
41
of the Church of Ireland) ordained by bishops, except ministers of the
disestablished Church of Wales, are disqualified; so are Roman Catholic
priests, and ministers of the Established (Presbyterian) Church of Scotland;
but nonconformist ministers, and ministers of non-Christian denomi-
nations, are not disqualified. To say that the law is a mass of archaic
anomalies is one thing; to rationalize it, given the discordant sentiments
expressed by the religious bodies themselves, is another. A select com-
mittee of the House which investigated the whole matter in the early
42
1950s recommended that no change be then made, and the same view
was taken by another select committee a few years later. 43 This strange
44
tangle is likely to be with us for some time.

9. Ministers of the Crown not more than ninety-five

: holders of specified
ministerial offices may sit and vote at any one time in the House of Com-
mons (House of Commons Disqualification Act 1975, s. 2(1) and Schedule
2). Since by convention a Minister must have or obtain a seat in one or
other House, the appointment of a person to ministerial office when the
maximum number has already been reached implies that he must be a peer
or be granted a peerage; or that a sitting member be granted a peerage to
make room for him; or that legislation be passed rapidly to regularize the
position; or (possibly) that the new Minister be given an office not
hitherto recognized by statute; though amending legislation would again
be needed to provide him with a salary and legal powers. 45 The maximum
number of persons to whom salaries may be paid as holders of certain
46
ministerial offices is prescribed by statute.
The history of the statutory limitation of numbers of Ministers in the
40. Representation of the People Act 1949, ss. 139, 140, 151, 152; see also pp. 233-4.
41. Re MacManaway [1951] A.C. 161.
42. H.C. 200 (1952-53).
43. Select Committee on the House of Commons Disqualification Bill (H.C. 349
(1955-56)).
44. Though informed opinion in the Church of England now seems to fa", oar repei 1

of the disqualifications: see Church and State (1970), pp. 57-8 (The Report of the
Archbishops’ Commission).
45. The last two expedients were resorted to in 1964 when Mr Wilson appointed a
number of Ministers in excess of the maximum then authorized: sec Park (1965) 28
Mod. L. Rev. 338.
46. Ministerial and other Salaries Act 1975.

The House of Commons: Elections and Members 243

Commons is linked with restrictions on the holders of non-political offices.
In the sixteenth century the House of Commons asserted, as a matter of
privilege, a right to exclude from membership the holders of certain public
offices, the tenure of which was incompatible with attendance in the
House. In Charles H’s time the Commons became uneasy at attempts by
the Crown to manage and control it by patronage, and a movement
developed to exclude all holders of offices and places of profit under the
Crown from membership of the House. This movement succeeded under
William III. But the separation of the Executive from the elected legis-

lative House never became operative; the relevant provisions of the Act
of Settlement 1701 were amended in 1705 and 1707, and a broad distinc-
47
tion was drawn between old offices of profit, which did not disqualify,
and new offices, which did disqualify, subject to various exceptions
interpreted as authorizing members appointed to subsequently created
political offices to sit, provided that they resigned their seats and were
then successful in a by-election; this inconvenient requirement was finally
abolished in 1926. Many new non-political offices disqualified absolutely.
In 1937 the Ministers of the Crown Act rationalized the law by grouping
ministerial offices and specifying how many holders of offices in each group
could sit and vote in (i.e., be members of) the House of Commons at any
one time. The permissible number was enlarged by individual Acts
creating new Ministers, and again, in more general terms, by the House of
Commons Disqualification Act 1957 and the Ministers of the Crown Act
48
1964 The modern policy is to strike a balance between the principle that
.

every major Department ought to have a ministerial spokesman in the

Commons and the undesirability of having the Government side of the
House overweighted by Ministers at the expense of backbenchers.
10. Holders of public offices. The meaning of an office or place
of profit
which disqualified or rendered its holder liable to vacate his seat and
stand for re-election remained obscure, and also highly inconvenient, for
till 195j a common informer could sue a
disqualified member for a
frequently
penalty of £500 for each day on which he had sat and voted;
Parliament would be asked to pass an Act indemnifying an individual

member against the legal consequences of having accepted in good faith a

positioii (for example, unpaid membership of a special tribunal)'which
might still be construed as an office or place of ‘profit’ in the gift of the
Crown. The only remedy was to replace the general phrase by an explicit
list of offices, tenure of which ought to disqualify
because they required a

had to resign and then submit himself to re-election at

47. Except that the holder
a by-election. could then retain his ‘office of profit’ and sit in the House.
He
Disqualification Act 1975,
48. The governing statute is now the House of Commons
s. 2(1) and Sched. 2.

244 Parliament and Legislation

degree of political impartiality' or a burden of continuing responsibility
incompatible with membership of the House of Commons. bill to this A
effect was introduced in 1955, amended examination by a
after detailed
49
select committee of the House, and passed into law as the House of
Commons Disqualification Act 1957 (now the House of Commons Dis-
qualification Act 1975).
The main classes of persons thus disqualified for membership are:

() Professional full-time judges.

( ) Civil servants.
(c) Members of the regular armed forces.
(i d ) Full-time members of a police force.
(e)Members of the legislatures of non-Commonwealth countries. 50
(/) Members of independent public boards and commissions, the
chairmen and sometimes the members of ‘administrative’ tribunals, and
other persons occupying offices requiring political neutrality, judicial
detachment or other characteristics inconsistent with membership of the
House. These disqualifying posts are listed in full in the First Schedule to
the 1975 Act; the list may be varied by statute, or by Order in Council
made in pursuance of a resolution of the House. The 1975 Act may be re-
printed in an amended and up-to-date form so that candidates and mem-
bers may know how they stand.

11. Acceptance of the offices of bailiff or steward of the Chiltem Hundreds

or the Manor of Northstead. This is the traditional manner of resigning
membership; these offices are nominal offices of profit under the Crown,
and acceptance of any of them is expressly preserved as a ground of
disqualification by section 4 of the 1975 Act.

12. Expulsion by resolution of the House. The House may declare a

member’s seat vacant, either because he has incurred a legal disqualification
or for any other reason whatsoever; this is one of its privileges. It cannot,
however, prevent that person from standing as a candidate at a by-
51
election.

49. For the report of the Select Committee, see H.C. 349 (1955-6). For the report
of an earlier committee, reviewing more fully the history of the problem, see H.C.
120 (1940-41).
50. This excludes members of the Parliament of the Republic of Ireland. Dual
membership for persons residing outside the British Isles is hardly feasible, though
Westminster M.P.s who are members of the European Assembly have contrived to
achieve the impossible. Commonwealth peers occasionally sit in the House of Lords,
but until winds of change began to blow through the corridors of Westminster, absentee
membership of the Lords was quite acceptable.
51. See pp. 310-11.

The House of Commons: Elections and Members 245

 Effect of disqualification. 1 . If a person already subject to a legal incapacity
(for example, peerage) is membership then, (a) the House may
elected to
declare his seat vacant or (b) a petition may be lodged to have him un-
seated in pursuance of the finding by an election court that his election
was void. 52
2. If a sitting member incurs a disqualification, then (a) the House may
declare his seat vacant, not automatically vacated by the nature of
if it is

the disqualification; or (b) any member of the public may apply to the
Privy Council for a declaration that a member is disqualified under the
1975 Act; the matter is to be referred to the Judicial Committee; 53 or (c)
the House itself may petition the Crown to have the matter referred to
the Judicial Committee for an advisory opinion; 54 or (d) the House may,
if it thinks fit, waive the effect of a disqualification under the 1975 Act if

it has already been removed; 55 or (e) a common informer may still pursue
his action for penalties against an episcopally ordained clergyman who
sits and votes while subject to the disqualification. 56

Selection ofcandidates

Under our present system of two alternately dominant parties, a large

majority of seats will be ‘safe’ for either the Conservative or the Labour
candidate at a General Election, 57 unless there is a substantial swing in
public support away from one of the parties, in which case safe seats may
become marginal. Hence the selection of the official candidate for the
Conservative or Labour Party, as the case may be, will as a rule effectively

52. For election petitions, see pp. 251-2. When Mr Anthony Wedgwood Benn
succeeded to his father’s peerage as Viscount Stansgate, he argued that he was entitled
to retain his seat in the Commons because he had not applied for a writ of summons
to the Lords. The House referred the matter to the Committee of Privileges; the
Committee found against Mr Wedgwood Benn and the House adopted its report and
declared his seat vacant. He stood as a candidate at the ensuing by-election, which he
won, but was unseated on an election petition by his defeated opponent: Re Parlia-
mentary Election for Bristol South-East (1961), reported [1964] 2 Q.B. 257. When the
Peerage Act 1963 was passed he immediately disclaimed his peerage and was able to
regain his seat.
53. House of Commons Disqualification Act 1975, s. 7. The applicant must furnish
security for costs. No
such proceeding has been brought; this is hardly surprising.
54. Under section 4 of the Judicial Committee Act 1833. This procedure was adopted
in Re MacManaway [1951] A.C. 161.
55. As by resignation from the disqualifying office: 1975 Act, s. 6.
Under the House of Commons (Clergy Disqualification) Act 1801.
56.
57. The position may be more fluid at a by-election, where candidates from smaller
national or regional parties, or even independents, may benefit from a big ‘protest’
vote of large-scale abstentions. At by-elections the voters know that they are not
participating in the choice of a Government.

246 Parliament and Legislation

 determine who will win the seat. For most of those who vote, a General
Election is a ritualistic affirmation of support for (or hostility to) one of

the two main national parties and a means of choosing a Government;

and an unattractive candidate will seldom cause his party to lose the seat.

In England, not impossible 58 for an Independent M.P. to be

it is rare, but ,

59
elected even at a by-election In both Scotland and Wales the pattern is
.

nowadays far from the same as in England. Nationalists and Liberals may

win a fair proportion of the seats, and the personal attributes of candidates
will sometimes count for more than the blessing of a mass party organiza-
tion. Northern Ireland, too, may provide a number of Independent MJ\s
in the Commons.
The role of political parties in the British system of government is too
60
big a topic to be considered adequately in a primarily legal work We .

shall touch briefly upon the part played by the parties in the House of
Commons in the next chapter. In the selection of candidates, party choice
is wholly unregulated by rules of strict law, and depends on extra-legal 61

party rules and practices. In many states in the United States of America,
and in a few other countries, statutory provision is made for primary
elections to select official party candidates. This democratic safeguard is

absent in (though recently some Conservative constituency

Britain
associations have conducted informal polls to select prospective party
candidates), and party choice is normally determined by an inner group
of party activists and national office-holders.
62
Selection mainly a matter for local constituency parties. In the
is

Labour Party, nominations of prospective candidates come from ward

branches and affiliated organizations (normally trades unions). Transport
House (the Labour headquarters) has lists of officially approved candi-
dates. The executive committee of the constituency party draws up a
short list, and the candidate is then chosen, subject to the approval of the
National Executive Committee of the party, by a selection conference of
the constituency party's general management committee. Occasionally a
prospective candidate, or a sitting member, is vetoed as an official candi-
date by the National Executive Committee ; this will lead to the nomination
of another candidate with official backing at the national level, and may
entail disaffiliation of the constituency party. A Labour candidate lacking
58. See p. 248.
59. For the from 1900 to 1975, see David Butler and Anne Sloman, British
figures
Political Facts1900-1975 (4th edn), p. 150.
60. The leading modern work is R. T. McKenzie, British Political Parties (2nd edn),
61. Though cf. John v. Pees [1970] Ch. 345 (natural justice to be observed in disaffili-
ation or suspension of local party organization).
62. See R. L. Leonard, Elections in Britain pp. 65-81 for a good short account, and
,

Michael Rush, Hie Selection oj Parliamentary Candidates (1969) for a very lull study.

The House of Commons: Elections and Members 247

officialbacking will normally have no chance at all of being elected. The
General Election of 1970, however, furnished a spectacular exception to
the rule: the octogenarian member for Merthyr Tydfil in South Wales
was not readopted by his constituency party as the official candidate, but
he stood as an Independent and won the seat, handsomely defeating the
official candidate. In 1973 this feat was emulated at Lincoln, and in 1974

at Blyth, but the victors did not survive the ensuing General Elections.
At the General Election of October 1974, 142 Labour M.P.s (not all of
them in working-class occupations) were ‘sponsored’ by trades unions, in
that the union made a contribution to the expenses of their constituency
63
organizations and But over a half of all Labour
election campaigns.
M.P.s were university educated and only a quarter were in working-class
occupations.
Selection procedure among the Conservatives is broadly similar to that
of the Labour Party, though ratification of the final choice is made by a
64
general meeting of the whole constituency association (and occasionally
by postal ballot of members). The Conservative Central Office also has its
approved list, but it hardly ever refuses to endorse a local choice. Con-
servative candidates and M.P.s are not allowed to make more than a
nominal contribution to their constituency association’s funds. In practice
Conservative M.P.s come from a smaller range of social groups than
Labour M.P.s. Of those elected in October 1974, 75 per cent had been to
public schools and over a half to Oxbridge; the corresponding figures for
65
Labour M.P.s were 18 per cent and 25 per cent. Although about a third
of the working-class votes Conservative in an average election year, only
one or two manual workers will occupy Conservative seats. Nevertheless,
the differences between the social complexions of the front benches of
the

two parliamentary parties are now less striking than their similarities.
There is no constitutional procedure whereby an M.P. can be com-
pelled by his constituents to vacate his seat, but it is open to
the con-
at the next
stituency party or association to adopt a different candidate

Mr Douglas Houghton’s Memorandum to the Select Committee on

63 See also
Members’ Interests (Declaration) (H.C. 57 (1969-70), pp. 120-25).
Companies contri-
national party funds must now disclose the fact in their accounts : Companies
buting to
overwhelmingly to the
Act 1967, s. 19. As was to be expected, the contributions go
is derived from trades
Conservative Party. A large part of the Labour Party’s income
unions and the political levy imposed on their members.
all paid-up members of the
64. Liberal candidates are^ selected at a meeting of
constituency party. . ,

65 .See Peter G. Richards, The Backbenchers (1972), pp.

21-2. The school-teaching
the Labour benches. Company
profession was far more strongly represented on
directors (see Andrew Roth, The Business Background of M.P.s ) and farmers are
See further David Butler and Dennis Kavanagh,
numerous on the Conservative side.

The British General Election of October, 1974.

248 Parliament and Legislation

General Election if they are dissatisfied with their member’s conduct or pol-
66
itical stance. This can be a very real threat to a member’s independence.
A member may, of course, be refused official backing by party headquarters
at an election. It is also open to the national party headquarters to seek to
protect the member; but their practical freedom of action is restricted,
67
especially in the Conservative Party.

Electoral campaigns

Following a dissolution, candidates wishing to stand for election must

submit nomination papers (signed by a proposer, a seconder and eight
other voters) to the returning officer within eight clear days; polling day
will be nine clear days afterwards - in practice on a Thursday. The rules
governing by-elections are basically the same except that the issue of the
writ for holding an election will be made by the Speaker on the resolution
of the House of Commons. By custom the necessary motion is moved
by a whip from the party which held the seat before the vacancy arose.
A party fearing loss of such a seat sometimes refrains from moving the
68
motion for months, leaving the constituency unrepresented. The Recess
Elections Act 1975, which replaced earlier statutory provisions, enables
writs for by-elections to be issued by the Speaker at the request of any two
members during a parliamentary recess it would be interesting to see this
;

procedure invoked against the wishes of the party that held the seat.
Before party candidates are nominated, it is usual for them to be
formally adopted at a special constituency members’ meeting, though
that is not required by law. But every candidate must appoint an election
agent (who may be himself), and the agent will be accountable to the
returning officer after the polls for election expenditure. Some frivolous
candidatures may still be discouraged by the rule that upon nomination a
candidate must deposit the sum of £150, which will be forfeited if he fails
69
to obtain more than one-eighth of the votes cast.
Attempts have been made by legal regulation to ensure as far as possible
70 and
that election campaigns are fairly conducted. Bribery, treating

66. Sitting Labour M.P.s faced this threat in the mid-1970s, notably Mr Prentice
(Hammersmith, N.) and - for rather different reasons
-
(Newham, N.E.), Mr Tomney
Mr Stonehouse (Walsall, N.).
Pulzer, Political Representation and Elections in Britain (2nd edn),
67. Peter G. J.

pp. 77-81.
68. Swindon was without a member for seven months in 1969.
69. The sum was fixed in 1918. In real terms today it would be over £1000 (915 H.C.
Deb. 339 (written answers 19 July 1976)).
70. Probably the best account of the details of electoral law is
in Halsbury s Laws of
England (3rd edn), vol. 14, Elections with Cumulative Supplement.
,

The House of Commons: Elections and Members 249

undue influence in the nature of duress are corrupt practices. Candidates
are allowed to send an election address to each voter free of postage, and
are not to be refused permission to hire schools maintained by the local
education authority for election meetings. Under non-statutory agree-
ments between the main parties, the broadcasting authorities allocate
time for party political programmes a reasonably equitable manner on
in

a national basis. And is limited by law so that

expenditure on elections
not too much weight shall be given to the power of the purse. The law
relating to election expenses is in some respects intricate, obscure and
unsatisfactory - characteristics reflecting not merely the intrinsic difficulty
of detailed regulation but also the influence of vested interests in the main
parties which would prefer the law to be vague on certain points. The
main general rules are:

1. That no expenditure may be incurred with a view to promoting or

procuring the election of a candidate at an election by any person other

than the candidate himself or his agent or a person authorized by the
agent. 71

2. That the maximum expenditure to be incurred at an election shall be

£1075 for a constituency, plus 6p for six registered voters in
restricted to
a county constituency, and 6p for eight registered voters in a borough
72
constituency. *

3. That certain kinds of expenditure (notably on broadcasting from out-

side the United Kingdom except by arrangement with the BBC and the
I BA) 73 which might give a wealthy party an unfair advantage shall be
74
absolutely prohibited.

The difficulties are mostly concerned with the first of these rules, taken
in conjunction with the second. What is the relevant period for the purpose
of election expenditure? Does it begin with the announcement of a forth-
coming dissolution, the proclamation of dissolution, the adoption of
75
candidates, the presentation of nomination papers? Probably the

71. Representation of the PeopleAct 1949, s. 63 (as amended). Criticism of an

opponent capable of promoting the election of a candidate who mighUincur an
is

unauthorized expense in so doing: v. Luft [1976] 3 W.L.R. 32.

72. Representation ol the People Act 1974.

73. 1949 Act, s. 80(1), as amended by s. 9(5) of the 1969 Act. Broadcasts within this
country about a constituency during an election period cannot include a candidate
without that candidate’s consent (Representation of the People Act 1969 s. 9).
But the prohibition on the use Oi bands, torches, flags and banners (1949 Act,
74.
s. removed (1969 Act, s. 10). Restrictions on the use ol motor cars for
97) has been
conveying voters to and from the polls were abolished in 1958.
75. Authorities are considered in H.L.E. (3rd edn), vol. 14, pp. 176-9.

250 Parliament and Legislation

 earliest of these dates is the relevant one, 76 though in a sense the party
organizations are waging a continuous electoral campaign throughout the
life of a Parliament. Again, does expenditure at the national level during

the election period have to be apportioned between all constituencies in

which the party’s candidates are standing, or is it only relevant to consider
propaganda distributed or otherwise used in the particular constituency?
British electoral law places its emphasis, with a disarming lack of con-
viction, on the individual constituency and the individual candidate; and
the general interpretation, supported directly or indirectly by two modem
judicial decisions, is that only expenditure for the purpose of promoting
the election of an individual candidate in his constituency (as distinct
from expenditure directed to procuring the election or defeat of candidates
of a particular party in general) has to be counted as an election expense. 77
Neither of the main parties is likely to challenge this benevolent inter-
pretation. In any event, newspaper articles and comments and political
broadcasting programmes (as distinct from advertisements) are expressly
excluded from the definition of election expenses, even if the money is
spent with a view to promoting the election of a particular candidate. 78
References in this chapter to the role of the returning officer must not
obscure the fact that the burden of organizing the machinery of an election,
and particularly the poll and the count, rests mainly on the registration
officer.

Election petitions

A voter or a defeated candidate may lodge a petition against the validity

of an election. 79 Since 1868 petitions have been heard by an election
court, now consisting in England of two judges of the Queen’s Bench
Division, who may sit in the constituency in question. From the early
seventeenth century 1868 disputed elections had been determined
till as
a matter of privilege by the House of Commons itself, many of

76. See sections 9(2), (3), of the 1969 Act,

adopting the early date for the purpose of
Part of the 1969 Act.
II

77. See R. v. Tronoh Mines Ltd [1952] 1 All E.R. 697 (newspaper advertisement by
company advocating defeat of the Labour Government at the impending General
Election of 1951, held not an election expense within the meaning of s. 63 of the 1949
Act); see also Grieve v. Douglas-Home 1965 S.C. 313 (party political broadcast featur-
ing the then Prime Minister held not to be expenditure ‘with a view to* procuring his
election in his constituency).
78. 1949 Act, s. 63(1), proviso, as amended by s. 9(4) of the 1969 Act; this amend-
ment resolved any doubt that survived the decision in Grieve v. Douglas-Home (see
above) on party political broadcasts.
79. The law is now governed by Part III of the Representation of the People Act
1949.

The House of Commons: Elections and Members 251

members had been elected by means of what would now be regarded as
corrupt and illegal practices, and voting in the House, not unexpectedly,
tended to run along party lines.
Petitions based on illegal or corrupt practices or other irregularities at
parliamentary elections are now extremely rare; this is partly because
very close contests are uncommon and even if the court finds that irregu-
larities were present it may determine that the result ought to stand since

they were unlikely to have affected the result 80 A

petition may also be
.

lodged on the ground that the successful candidate was subject to a legal
incapacity - for example, peerage .
81
In such a case the court may, if
satisfied that the incapacity existed, either declare the election void (so
that a by-election has to be held) or, if satisfied that the voters for the
successful candidate had had his incapacity sufficiently brought to their
notice so that they must be deemed deliberately to have thrown their
votes away, award the seat to the runner-up 82 Normally the petition has
.

to be lodged within three weeks of the date of the election.

Ip form the judgment of an election court is a report to the Speaker,
which the House is directed by statute to accept. By the act of resolving
that the report be recorded in the Journals of the House, the empty shell
of the ancient privilege of the House is preserved.
We have already taken note of other methods by which the qualification
of an elected member to sit in the House may be challenged and deter-
83
mined .

80. There are other reasons, including the maxim that dog does not bite dog: see
Wilson, Cases and Materials 2nd edn, pp. 131-2.
,

81. See Re Parliamentary Election for Bristol South-East [1964] 2 Q.B. 257 (the
Stansgate Peerage case). See also the Northern Ireland cases of Mitchell and Clarke
[1958] N.I. 143, 151 (successful candidates serving long sentences tor felony, then a
disqualification for election).
82. Thus, the Bristol South-East seat was awarded to Viscount Stansgate’s (Mr
Anthony Wedgwood Benn’s) defeated opponent after the by-election caused by the
resolution of the House declaring the seat to be vacant.
83. See pp. 245-6.

252 Parliament and Legislation

 Chapter 12
The House of Commons:
Functions and Procedure

Introduction
Officers

In 1977 the House of Commons had 635 members, including the Speaker.
The first House at the opening of a new Parliament is to
business of the
elect a Speaker from among its members the Queen formally signifies her
;

approval of the Commons’ choice. The Speaker is expected to be an ab-

solutely impartial chairman of debate; in no sense is he a spokesman for
the Government. In early days he was the spokesman for the Commons
in relation to the Crown and the Lords. His function of presenting the
views of the Commons to the monarch made his position fraught with
hazard, and the show of reluctance that he puts up today as he is propelled
gently to the Speaker’s chair after his electionis a reminder of things past.

His election is normally unopposed House, and he is not always

in the
a member on the Government side. He can be removed by a simple
resolution of the House, but this state of affairs will arise only if he has
comported himself with serious impropriety. The usual practice is to re-
elect the Speaker of the preceding Parliament if he has been returned at
the General Election and is willing to stand for office again. As Speaker
he detaches himself from his former party affiliations, 1 and if he contests
his seat at a General Election it will be as an Independent.
The Speaker does not participate in debate, even when the House is
sitting incommittee. Nor does he vote on a motion, unless a casting vote
from the chair is required the manner in which he is to cast such a vote
;

is circumscribed by precedent. His main functions in the House are to

maintain decorum in debate, to call upon members to speak, to give

rulings on points of order and on a question whether a prima facie case
of breach of privilege has been established, and to act as the servant of
the House (for example, in directing the issue of writs for filling vacancies)
or as its spokesman (for example, in delivering a reprimand or admon-
1 Suggestions that the Speaker’s constituents are in effect unrepresented in the House
.

because of his non-political role overlook the fact that he will take up their problems
with Ministers and in that capacity may carry greater weight than an ordinary back-
bencher. On the Speakership, sec Lord Selwyn-Loyd, Mr, Speaker Sir (1976).
,

The House of Commons: Functions and Procedure 253

ition to one found guilty of contempt of the House; or in communications
with legislatures overseas or on ceremonial occasions). As the incarnation
of the ancient dignity of the House* he is habitually treated with great
respect, indeed deference. Important discretionary functions fall to be
discharged by him from time to time - for example, certifying whether a
bill is a money bill within the meaning of the Parliament Act 1911; sus-

pending a member for a day for disorderly conduct, or naming a member

(who may then incur a period of suspension) for persistent disregard of
the authority of the chair; 2 appointing members of the panel of chairmen
of committees at the beginning of each session; 3 deciding whether to
accept a motion for the closure of debate, and whether to put to the House
for debate a question raised as an urgent matter of public importance.
He has a salary similar to that of a High Court judge, charged on the
Consolidated Fund so that it does not require annual renewal, and a house
within the Palace of Westminster; -when he retires he will be offered a
peerage.
The office of Deputy Speaker is filled by three members elected by the
House - the Chairman and Deputy Chairmen of Ways and Means.
At least two belong to the party in office, but when in the chair, they are
expected to observe the same impartiality as the Speaker. Most of the
Speaker’s powers are exercisable by them.
The Speaker is assisted by the Clerk of the House of Commons, the
other clerks at the table (whose functions are by no means merely clerical)
and a personal legal adviser and administrative officer. Speaker’s Counsel.
The Serjeant at Arms attends upon the Speaker; he executes orders of the
House (for example, to clear the public galleries; to take a person into
custody), and is generally responsible for the domestic staff arrangements
of the House.

Records

The formal record of the transactions of the House is the Journal of the
House, published annually. The Journals do not purport to summarize
all They are admissible in evidence in court.
that has occurred in debate.
Each day the votes and proceedings of the House are recorded and
circulated to members; they will record the decisions of the House and
its committees, and in due course their substance will be entered in the

Journals. The official report {Hansard) is a daily verbatim transcript of

all that was said and done in the House in the course of parliamentary

2. See p. 314, note 50.

3. For the functions of the Business Committee of the House (consisting of the
chairmen, and other members nominated by the Speaker), see p. 262.

254 Parliament and Legislation

 business; it what is in effect an appendix, written answers to
includes, in
questions. This published by Her Majesty’s Stationery OfiW with the
is

authority of the House. It does not include reports of the proceedings of

standing committees or select committees, which are published separately.
Reports ordered to be laid before the House of Commons and published
otherwise than in pursuance of royal or ministerial authority are called
House of Commons papers, as distinct from Command papers. The
Lords have their own Journals, minutes of proceedings, official reports,
and series of papeis.

The law and custom ofParliament

The main essentials of parliamentary procedure are contained in the

standing orders 4 of the House, which are published by the Stationery
Office from time to time and may be varied by a simple majority of the
House, and in sessional orders which, for example, authorize the appoint-
ment of select committees which the House has not yet decided to estab-
lish on a permanent basis. Changes in these orders frequently emanate

from recommendations of the Select Committee on Procedure. Separate

standing orders for private bills are issued.
In addition, the conduct of parliamentary proceedings is regulated to a
small extent by statute (for example, the procedure on consolidation bills)

and common law; and to a large extent by lesolutions of the House,

Speakers’ rulings and unwritten customs or conventions. Some of the
most important practices governing the allocation of parliamentary time
are not enshrined in any formal authoritative document.
Parliamentary privilege 5 stands in a slightly different category, though
itis clearly part of the law and custom of Parliament. It is to be found

partly in legislation and case-law, mainly in resolutions of each House,

and hardly at all in standing or sessional orders or in unwritten con-
ventions.

The debating chamber

In many legislatures the chamber is in the shape of a horseshoe, and

members are able to signify their ideological position by placing them-
selveson the far left, the far right, or at a suitable intermediate point;
speeches are normally delivered from a rostrum. The chamber of the

4. The standing orders referred to in this edition are those adopted in 1975 (and
published as an Appendix to the nineteenth edition of Erskine May, Parliamentary
Practice 1976).
,

5. See eh. 14.

The House of Commons: Functions and Procedure 255

 House of Commons is Government benches are oh the
rectangular; the
right of the elevated Speaker’s chair, the
Opposition are to his left. Today
this division symbolizes the character of parliamentary government.
Ministers sit on the Government front bench and their supporters behind
them; the Opposition front bench faces them. On each side of the House
the undemarcated line between frontbenchers and backbenchers will be
significant. Members speak from their places and do not declaim from a
rostrum; this conduces to an informal style of debate, discouraging the
6
rhetorical flourish. However, informality has its limits. Members must
address themselves to the chair; when referring to other members they
are to mention them not by name but by description (‘the honourable
member for Stretchford East’); pejorative epithets are out of order;
smoking, and reading newspapers, are not permitted.

Facilities for members

The number of seats in the House is insufficient to accommodate all

members at any one time. This dearth of space (which seldom gives rise
to problems except immediately before an important division on a motion)
is deliberately designed to foster the
atmosphere of an intimate club; it
also harks back to the days when for most members politics were far from
being a full-time occupation. (Salaries were not paid to members till
shortly before the First World War.) In 1977 a member’s salary was
£6062; 7 a maximum of £3512 was allowed as secretarial expenses; there
were various other allowances for research assistance and travel, and free
telephone calls and postage from the House. The facilities provided for
members outside the chamber are on the whole unimpressive, 8 though there
9
is a good library with a useful reference service. The House frequently
sits late into the night. Since members normally have a multiplicity of

responsibilities besides attendance in the House, it is perhaps surprising

6. One of
the arguments adduced against permitting television broadcasting of
debates is would encourage members to ‘play to the gallery*. But, following
that this
experiments, the Commons (as with the Lords) has allowed sound broadcasting of
proceedings, probably to start in 1977.
7. The Top Salaries Review Body had recommended in 1974 that the salary should
be increased to £8000 (Report No. 5, Cmnd 5701), but the House voted itself a lower
figure, in 1976 increased to the one cited in the text, to encourage the others in pay
restraint. And if an M.P.*s other income would put his annual income to more than
£8500, then he is not eligible for the increase in parliamentary pay voted in 1976: see
915 H.C. Deb. 32-9 (12 July 1976).
8. See generally Bernard Crick, The Reform of Parliament (2nd edn).

9. See further A. Barker and M. Rush, The Member of Parliament and his Informa-

tion.

256 Parliament and Legislation

that the quality of backbenchers is good and has almost certainly im-
proved since the 1950s; this is hardly attributable to financial rewards, 10
a sense of security 11 or leisured ease, or a feeling that a backbencher is
likely to set the course of the ship of state, but rather to such factors as the
hope of ministerial office one fine day, a sen§e of excitement at being in ‘

the know’ and close to the hub of political activity, or a desire to attract
public attention to one’s causes, opinions or oneself. M.P.s are on the
whole a good deal more articulate than the average member of the com-
munity, and it is unkind to criticize them for having sought a place in that
forum which offers the most dignified platform for eloquence and en-
shrines their public utterances in imperishable prose.

Parties In the House 12

In 1937 the Ministers of the Crown Act formally recognized the status of
the Leader of the Opposition, providing for a salary, charged on the
Consolidated Fund, to be paid to him. This was right and proper, for he
or she is the alternative Prime Minister, and a fundamental feature of the
British parliamentary system is that the leadership of the largest opposition
party really an alternative Government and should therefore be en-
is

couraged to behave like one; in short, being Leader of the Opposition 13 is

a full-time job. Linder the Ministerial and other Salaries Act 1975, his
salary is £9500, and the Chief Opposition Whip in the Commons gets a
salary of £7500; salaries are also paid to two Assistant Opposition Whips,
and to the Leader of the Opposition and the Chief Opposition Whip in the
Lords. 14

10. Bribery of members is almost unknown. On sponsorship and retainers by

pressure groups, see pp. 248, 263-4 and 308-9. Fringe benefits, such as invitations to
appear on television and write articles for the press, are, of course, a not unattractive
by-product of political fame and acumen for some members.
11. But pension rights lor ex-members have recently been extended: Parliamentary
and other Pensions Act 1972; Parliamentary and other Pensions and Salaries Act 1976.
12. See especially Peter G. Richards, The Backbenchers (1972), chs. 3, 11. This book
is a valuable and concise work of reference. See also Dick Leonard and Valentine
Herman (eds.). The Backbencher and Parliament (1972).
13. Defined (Ministerial and other Salaries Act 1975, s. 2(1)) as that member ‘who
is for the time being the Leader of the party in that House in opposition to Her

Majesty’s Government having the greatest numerical strength in the House . . Any
dispute as to who is the occupant of this post is to be determined conclusively by the
Speaker.
14. The House of Commons resolved in 1975 that money from public funds should
be paid to Opposition parties to help their parliamentary work, calculated on the
number of seats and votes won at the previous General Election: 888 H.C. Deb. 1869-
1934 (20 March 1975). Over £250,000 was so paid in the first eighteen months of the
scheme: 913 H.C. Deb. 1095 (21 June 1976). The Report of the Committee on Financial

The House of Commons: Functions and Procedure 257

 When Labour is in opposition, the Leader of the Party, the Deputy
Leader and the Chief Whip are elected annually by the Parliamentary
Labour Party. So are tfie Chairman of the Parliamentary Party (a back-
bencher) and twelve M.P.s and three peers; collectively they form the
Parliamentary Committee or Shadow Cabinet. Decisions of the Shadow
Cabinet - the allocation of subject responsibilities to its members is a
matter for the Party Leader - are reported weekly to the Parliamentary
Party. Lurking in the background lie the National Executive Committee
of the Party (elected by the party’s annual national conference and includ-
ing prominent trade unionists and other non-parliamentary figures) and
the resolutions passed by the annual conference itself. The relationship
between the party leadership and those elected bodies is fluid and in-
triguing, 15 but a strong party leader such as Gaitskell has contrived to
impose his own policies in the face of an unacceptable majority vote at the
party conference. Within the House of Commons, the Parliamentary
Party elects M.P.s to serve with shadow Ministers on specialized party
committees relating to defined areas of government. When Labour is in
office, the leadership is not elected annually. Rapport with the Wilson

Governments of 1964-70 and 1974-6 was maintained 16 by a liaison com-

mittee of the Parliamentary Party, comprising the Chairman of the Parlia-
mentary Party, elected vice-chairmen, the Leader of the House of Commons
and the Government Chief Whip, and by contacts between specialized sub-
ject groups (and particularly their chairmen) and the relevant Ministers.
There are also regional groups.
The pattern in the Conservative Party is now broadly similar. The Party
Leader is elected by the Parliamentary Party, and is then presented to a
meeting of Conservatives drawn widely from the Party and which acts as a
nominal electoral college: in effect its function is to acclaim the Leader. In
1975 Mr Heath accepted changes in the election rules, and offered himself
for re-election: he lost to Mrs Thatcher. The new rules require annual re-
election. The Leader appoints the Deputy Leader, the Chief Whip, the
Party Chairman and the Shadow Cabinet; he also has ultimate control of

Aid to Political Parties recommended that grants should be made to the central party
organizations based on 5p a vote cast for the party at the previous General Election,
and for payment of half of candidates* permitted expenses in parliamentary and local
government elections. To qualify for such payments a party would have, at the previous
General Election, to have elected at least two M.P.s, or elected one M.P. and polled
150,000 votes, or saved its deposit in at least six constituencies: Cmnd 6601 (1976).
15. See generally R. T. McKenzie, British Political Parties (2nd edn). For a less
and Leaders (2nd edn).
detailed review see Jean Blonde!, Voters, Parties
16. Douglas Houghton, The Times 28 August 1969, and (1969) 40 Political Quarterly
,

454. Mr Callaghan has continued the. practice.

258 Parliament and Legislation

 the party bureaucracy, 17 a function vested, within the Labour Party, in the
National Executive Committee. The Party’s annual conference 18 has tended
to be more deferential than the corresponding Labour Party conference
but signs of animated controversy are now perceptible. Within the Parlia-
mentary Party there are elected specialized and regional committees -
thirty-six in 1976. All backbench members belong to the 1922 committee
a body to which the leadership must pay careful attention despite the fact
that in form this committee is only a discussion group. 19
Party organization within the House is therefore far from being a
haphazard affair. Whether a party is in office or in opposition, the role of
the whips is of crucial importance in conveying the views of the rank and
file to the leadership and vice versa; in keeping members informed by
circular of forthcoming parliamentary business; in giving the expected
times of divisions in order to secure a high attendance - by underlining
the matter once, twice, or thrice; failure to comply with a three-line whip
without a very good excuse is often to be construed as an act of rebellion
against the leadership - in arranging, in consultation with whips on the
other side, for an indisposed member, or one with an urgent outside
commitment, to absent himself by ‘pairing’ him with another member
who also wishes to be absent from the division, so that neither party will
obtain an advantage; in making informal recommendations to the leader-
ship about the suitability of backbenchers for preferment; in supplying
names of members to serve on committees of the House and in helping
to impose party discipline by suasion, admonition and, if necessary,
threats that the party whip may be withdrawn or that the ultimate sanction
of expulsion from the Parliamentary Party may be imposed. However,
disciplinary penaltieson Labour members may be imposed only by the
Parliamentary Party itself and the Conservative whip is hardly ever with-
drawn. Those Labour M.P.s who, by defying a three-line whip, enabled
the European Communities Bill to pass, were not disciplined. All Govern-
ment whips are now salaried and the Chief Whip attends Cabinet meetings.
The senior whips also have an important part to play in organizing the
distribution of parliamentary time.

17. But see Pinto-Duschinsky (1972) 20 Political Studies 1, for practical limits to
this control.
18. The conference is called the Annual Conference of the National Union of
Conservative and Unionist Associations.
19. John P. Mackintosh, The British Cabinet (3rd edn), pp. 594-5, mentions some
of the decisions influenced by the committee.

The House of Commons: Functions and Procedure 259

 20
Business of the House

The House normally sits from 2.30 p.m. till about 10.30 p.m. from Monday
to Thursday and from II a.m. till 4.30 p.m. on Friday. Standing orders
21
recognize that priority shall be given to Government business, but
9
allocate twenty Fridays during a session to private members bills and
motions. 22 In practice private members are allowed to determine the
course of business on other occasions - for example, in debates on the
daily adjournment or the recess and Consolidated Fund Bills, and at
question time. An approximately equal amount of time to that allocated
to private members is placed at the disposal of the official Opposition,
which dominates the twenty-nine supply days. If, moreover, the Opposition
wishes to put down a motion of censure on the Government it is incum-
bent on the Government to give up a day for such a debate unless the
request is part of a campaign of obstruction.
Government business includes not only bills but also motions to debate
reports of committees and royal commissions (on which the Government
will express its views and submit to comment and criticism), motions to
approve certain subordinate legislative instruments, formal Government
statements, procedural motions (for example, to curtail debate on a bill),
and more general motions which serve as a peg on which a debate may hang.
This picture hardly corresponds with the image of a legislative body
dominated by the Executive, particularly when one recalls that the
Executive has to pay regard to the views of powerful pressure groups, to
stirrings among its backbenchers and party loyalists outside Parliament,
and in some contexts to the voice of public opinion - not to speak of
international pressures, and political popularity polls and by-election
results in so far as they may influence political morale. Furthermore, a
good deal of the time spent on Government bills is absorbed by critical
speeches and debates on amendments. On the other hand, not all par-
liamentary business is transacted on the floor of the House. And a Govern-
ment with an overall majority in the House is almost certain to succeed,
by marshalling support in the division lobbies and if necessary using its
majority to alter the parliamentary timetable, in securing the enactment of
the great bulk of its legislative programme.
Form and substance are therefore intertwined but in convoluted shapes.
The main responsibility for the business of the House is vested in the
Leader of the House of Commons (usually the Lord President of the
institutions. Sir Ivor
20. On this topic and many other aspects of parliamentary
it needs to be
Jennings’s Parliament (2nd edn, 1957) is still of great value, though
supplemented by more recent studies.
21. See S.O. Nos. 6(1), 15.
22. S.O. No. 6(2), (5).

260 Parliament and Legislation

Council), assisted by the Government Chief Whip. They are expected to
consult their opposite numbers ‘behind the Speaker’s chair’; parlia-
mentary time is allocated ‘through the usual channels’ on a basis of
bargain and compromise, on the understanding that, subject to standing
orders and convention, the Government has the bjggest claim and may be
able to impose its own priorities by resolutions suspending standing orders
or otherwise adjusting the normal timetable. Each Thursday in the House
the Leader of the Opposition asks the Leader of the House to announce
the business of the House for the forthcoming week. This is a question to
which he may know the answer already; if he or any other member is
dissatisfied, there is then an opportunity for public protest, and the
Government, anxious not to leave itself open to justifiable criticism, will
have already taken this possibility into account.

The following devices are available to enlarge the amount of time avail-
able to the Government - and, indeed, the House generally - for debate
on the floor of the House
1. Bills may be debated in standing committee (and now second reading
committee), so that other proceedings can take place simultaneously on
the floor of the House. The use of these small committees, sitting ‘upstairs’,
has now become a very important feature of contemporary parliamentary
procedure.
2. Standing orders relating to times of sitting may be suspended to postpone
the time of the daily adjournment (a device frequently resorted to) or
provide for special sittings on Fridays- or weekends (a device unpopular
in nearly all quarters). Again, the provisional date of adjournment for a
recess may be postponed if urgent business is incomplete; a motion for
this purpose may be resisted by the Opposition.

3. Standing orders may be suspended so as to enable the Government to

annex private members’ time. Any proposal to this effect would be deeply
23
resented today.

4. Procedural devices are available for shortening debate, and are some-
times used to prevent protraction of the proceedings by the official Oppo-
24
sition or backbenchers. The first is the closure. In its simplest form, this
involves a member (usually a Government whip, rising at a prearranged
time) purporting to move, in the course of debate, that ‘the question be
now put’. Unless the Speaker (or Deputy Speaker) regards such a motion
as an abuse of the rules of the House or an infringement of the rights of

23. Private members’ time was suspended during the Second World War and was
only restored in the 1948-9 session.
24. See S.O. Nos. 30, 31. See also S.O. No. 2, which enables a Minister to move
suspension of a late sitting till the following day.

The House of Commons: Functions and Procedure 261

the minority, he must put this question forthwith without further dis-
cussion; if the motion is passed, with at least 100 members voting in
favour, then the question then under debate (for example, that the bill be
read a second time, or that the House do now adjourn) is put to the
House and voted on immediately. The closure was first introduced into
the House on the Speaker’s responsibility in 1881 after a continuous
filibuster of forty-one hours by Irish home rulers who had decided that if

Britain would not let Ireland govern herself, the Irish would do their best

to prevent Britain governing herself; standing orders were adopted in 1882

The guillotine is a form of closure by compart-
to regularize the situation.
ments. If debate on a bill, particularly in committee, is likely to be, or is

being, unduly protracted, the Leader of the House introduces a resolution

under which a prescribed maximum number of days will be allocated to
each stage of the bill. Unless prior agreement between the two sides of the
House has been reached, debate on such a motion is likely to be acri-
monious, and the Government will be well advised to adopt such a
procedure only in case of dire necessity. When the resolution has been
passed, detailed compartmentalization of the bill will be effected by the
Business Committee of the House, and in standing committee by a sub-
committee. 25 When the appointed hour is reached the guillotine falls ; the
chairman must interrupt debate and the committee (or the House) must
pass on to the next phase even though many amendments have not yet
been reached. One should also mention in this context a separate matter -
the power (formerly called the kangaroo) vested in the Speaker at report
stage and the chairman in committee to select for discussion some amend-
ments to a bill and not to call (thus jumping over) others covering sub-
stantially the same ground. This power, unlike the closure and guillotine,
26
is conferred not by resolution of the House but by standing orders, is

frequently exercised, and rarely evokes serious controversy.

Legislation

Most of us want to see some parts of English law changed, sa as to rectify

an injustice or an anomaly, or to prohibit conduct of which we strongly
disapprove, or to enable something to be done in the interests of the
general public or a section of it or merely ourselves. But if we are to
transform our prescriptions into remedial medicine, we need power,
influence or persistence, or a combination of all three. If the general law
of the land is to be altered. Parliament must pass an Act, or Ministers
must be persuaded to make new regulations under powers already vested

25. S.O. Nos. 43, 44. 74.

26. S.O. Nos. 33, 65(3).

262 Parliament and Legislation

 in them by statute. Most of the public bills introduced into
Parliament
emanate from government Departments; nearly all of them will be passed
A fair number of bills are introduced by private members; not many of
them will reach the statute book. The vast bulk of rules and regulations
made under statutory authority are departmental, apart from local by-
laws. If, then, one cannot be a Minister or a senior civil servant, one
ought
to start a campaign, or better still, form or join an organization likely
to
influence the lawmakers. One can hope to exercise some influence
within
a major political party, particularly if one is elected to the House of
Commons; though party discipline will impose its constraints. Or one can
join what is usually called a pressure group. And perhaps one will
be
moved to form or join such a group in order to prevent the law being
changed for the worse.
Pressure groups 27 fall into two main classes, the sectional or interest
groups and the promotional or ‘cause’ groups. To the former class belong
such powerful groups as the Trades Union Congress, the Confederation
of British Industry, the National Farmers’ Union, the British medical
Association, and associations representing different categories of local
authorities. The degree of influence wielded by some of these bodies
may vary according as the Government is Labour or Conservative.
The power of the General Council of the TU C was demonstrated in 1969
when the Labour Government found it expedient to abandon legislative
proposals for industrial relations. In 1971 and 1972 individual unions
demonstrated their power in resisting implementation of the Conserva-
tive Government’s industrial relations and wages policies. The influence
of the Confederation of British Industry, 28 Jess obtrusive but more per-
vasive, restingon technical expertise, ample funds, representation on
numerous advisory and consultative bodies,
official, familiarity with the
corridors of power and contacts with Ministers, civil servants, M.P.s and
peers, must obviously be greater under a Conservative Government. The
major sectional pressure groups are always significant, because a Govern-
ment needs their cooperation and sometimes cannot withstand their
opposition; because they represent large organized elements of the
community; because they are wealthy, and can use their funds to employ
research staff and to mount extensive publicity campaigns if necessary;
because they have, or may be able to obtain, active members and sympa-
27. Political scientists are responsible for a rapidly growing body of literature on this
important subject. See generally S. E. Finer, Anonymous Empire (2nd edn) J. D. Stewart,
;

British Pressure Groups ; A. Potter, Organised Groups in British Politics ; S. H. Beer,

Modern British Politics . There are numerous case studies of the activities of individual
pressure groups. See, for example, H. Eckstein, Pressure Group Politics (on the British
Medical Association).
28. See Grant and Marsh (1971) 19 Political Studies 403.

The House of Commons Functions and Procedure 263

:
 29
thizers in Parliament; because they are represented on advisory bodies
connected with Departments because their office-holders will have direct
;

access to Ministers and senior civil servants. For a Department to intro-

duce a bill directly affecting the interests of such an organization without
prior consultation with its representatives is exceptional; it is still more
exceptional for regulations to be made without such consultation. Con-
sultation does not presuppose concurrence, but the content of the bill or
the regulations will frequently be influenced by these discussions. In the
case of bills, moreover, detailed amendments put down in Parliament

often originate from a pressure group. And a few bills passed, and a larger
number of regulations made, during the course of a year will be traceable
to the initiative of pressure groups, operating on Departments and private
members.
The pressure group which exists to promote a cause (for example, the
RSPCA, the Howard League for Penal Reform, Justice, the Lord’s Day
Observance Society) rather than a sectional interest is far less likely to be
consulted at the formative stage of legislation, but it may help to procure
the enactment of legislation (usually introduced as a private member’s
bill) or the amendment of bills. Relatively small but energetic and well-

organized pressure groups, using special reports or adept propaganda

directed' .towards influential persons rather than the general public, have
been largely instrumental in converting parliamentary majorities to such
causes as the abolition of capital punishment for murder, reform of the
criminal law relating to abortion and homosexual acts, the abolition of
and the importation of the Ombudsman under the
theatre censorship,
name of Parliamentary Commissioner for Administration. The
the
European Movement played a part in converting sceptics into supporters
of British accession to the EEC.
The end-product of legislation is an interplay of departmental initiative,
party political policies, pressure group activities and initiative of individual
M.P.s or groups of M.P.s. A
glance through the Public General Acts for,
say, 1975, shows that the majority of the eighty-three measures passed
into law were not inspired by political ideology or the pressure groups
just described, though some of their detailed provisions were influenced

29. On the relation between outside organizations and parliamentary privilege, see
modifications) the report
pp. 308-9. In June 1975 the House accepted (with certain
of the Select Committee on Members’ Interests (Declaration): H.C. 102 (1974-5).
The resolutions of the House provide for the declaration in debate of ‘any relevant
pecuniary interest or benefit of whatever nature, whether direct or indirect’, which an
M.P. may have had, may have or may be expecting to have in the subject matter of the
debate. Andthere is a register of interests, covering nine classes of pecuniary interest or
benefit, in which each M.P. should make an entry. See Appendix II to Erskine May,
op. cit.

264 Parliament and Legislation

by party or pressure group views and a minority were fiercely
political
controversial. A number were fundamentally
non-controversial, dealing
with the machinery of financial administration, technical law reform (for
example, implementing reports of the Law Commission) or the consolida-
tion of scattered enactments. Some were traceable to internal departmental
initiative, some to reports of independent bodies, some to international
agreements. No Act uncongenial to the Government was passed, though a
number of amendments to Government bills were accepted with reluctance.
This evidence suggests that the picture of parliamentary legislation as a
function of government is slightly over-coloured but by no means a carica-
ture; and that it is easy to over-emphasize the parts played by party poli-
tical programmes (except during the first year of a new Parliament) and
pressure group activities in determining the content of the statute book.

30
Legislative procedure

There is now a single Legislation Committee of the Cabinet, which

considers departmental and inter-departmental proposals for new Govern-
ment bills in principle, and arranges provisional priorities; it considers
later approved bills in detail, allocates firm priorities and keeps the
parliamentary timetable under close review. The Leader of the House of
Commons is chairman of the committee.

Consultation with interest groups is likely to be most active when a bill

has been approved in principle, though it may take place before any firm
decision has been made (for example, after publication of the report of
an independent committee or royal commission) to which the group will
almost certainly have submitted evidence. Recently Governments have
taken to issuing Green Papers, setting out tentative legislative proposals
31
for public discussion .

A memorandum of instructions will be prepared by the sponsoring

Department, or possibly an inter-departmental committee, for sub-
mission to parliamentary counsel, who will prepare a first draft of the bill.

30. The principal source of information is The Process of Legislation, Second Report
of the Select Committee on Procedure, July 1971 (H.C. 538 (1970-71)). See also
Burton and Drewry (1972) 25 Parliamentary Affairs 123-62 for a detailed analysis of
public legislation in 1970-71, and J. A. G. Griffith, Parliamentary Scrutiny of Govern-
ment Bills (1974), which analyses the progress of Government bills in 1967-8, 1968-9
and 1970-71.
3 1 See, for example, Cmnd 6399 1 976) on direct elections to the European Assembly.
. (

White Papers, stating firm or provisional decisions prior to publication of a bill, are
more common. Shortly before the Industrial Relations Bill was published, a detailed
‘Consultative Document* was issued. The publicity and opportunity for parliamentary
debate afforded prior to the European Communities Bill were, however, quite excep-
tional.

The House of Commons: Functions and Procedure 265

The bill may undergo it is introduced into Parlia-
several drafts before
ment. The be scrutinized by a Law Officer of the Crown
final draft will
as well as the Legislation Committee. Responsibility for the European
Communities Bill was generally ascribed to the then Solicitor-General, Sir
Geoffrey Howe.

Introduction and first reading

Bills may be introduced in the Commons or the Lords. In the interests of

good tactical management, a number of Government bills which are not
likely to arouse party political opposition begin their career in the Lords.
The existence of the upper House makes it possible to have more adequate
parliamentary debates on legislation than would be the case if we had a
unicameral Legislature. Money bills, however, must normally be intro-
duced in the Commons (but cf. p. 224), and a tax bill must be preceded by
a resolution of the Commons approving its introduction.
The normal method of introducing a public bill into the Commons is
by its ministerial sponsors presenting a dummy print of the bill at the
table; one of the clerks then reads out the title of the bill, which is thus
deemed to have been read a first time; the bill is ordered to be printed and
published, and a date fixed for the second reading.
Public bills introduced by private members can obtain a first reading
in one of three ways. The first is by obtaining a high place in the ballot for
the right to introduce private members’ bills. In practice a member needs a
high place to have any real prospect of seeing his bill pass through all its
stages into law. Promotional pressure groups and sometimes the Govern-
ment whips will seek to induce a well-placed private member to introduce
a bill of their own devising. Several Law Commission bills have been
enacted in this way. If the Government is particularly well disposed to
a bill, a Minister will move any necessaiy money resolution, and the
assistance of parliamentary counsel may be made available to its sponsor.
Sometimes a Government may give up part of its own time to enable the
bill to pass its final stages in the House. Secondly, a private member’s bill

may be introduced without leave of the House under S.O. No. 37. If such
a bill is unopposed and skilfully managed, it has a chance of becoming law.
Thirdly, any member may get up in his place at the beginning of public
business on Tuesdays or Wednesdays and ask leave of the House to
introduce a bill. The Speaker may allow him a few minutes to explain the

nature and objects of the bill and also another member a similar oppor-
tunity to speak in opposition; the House then divides on the question
whether to give leave. 32 Even if this preliminary hurdle is cleared, bills

32. S.O. No. 13.

266 Parliament and Legislation

introduced under the ‘ten-minute rule* seldom pass into law because they
cannot even be debated unless the Government is prepared to surrender
some of its own time. 33
Before a private bill - a bill of a local or personal character - can be
introduced and read a first time, elaborate statutory provisions and
standing orders have to be complied with. Private bills of a personal
character are now almost obsolete; they were used extensively in the
nineteenth century to provide for the naturalization of aliens and for
divorces entitling the parties to remarry, until these changes in status
could be effected by administrative action or judicial decrees under general
enabling legislation. The nineteenth-century flurry of railway private bills

is now part of economic Yet private legislation is not dying out.

history.
In 1973 sixty-nine Public General Acts were passed, but there were also
thirty-seven ‘Local and Personal’ Acts. Private bills are promoted mainly
by local authorities seeking to acquire special powers; some are promoted
by other public corporations, and a few by large public companies.
A local authority cannot promote a private bill to alter a local govern-
ment area or to alter its status or electoral arrangements. 34 If n county or
district authority wishes to promote a bill, it must give public notice, pass
the necessary resolutions by an absolute majority, and confirm the
35
resolution after the bill has been deposited in Parliament. Within the
House, the bill must pass the close scrutiny of the Examiners of private
bills, who have to be satisfied that all the preliminary formalities, including
36
the giving of notice to persons directly affected, have been complied
with. If these obstacles are successfully overcome, the bill is given a first
reading.

Second reading

The occasion provided for parliamentary debate on the principles of a

bill is the second reading stage. No amendment to individual clauses is

permissible. Rejection of a bill at second reading may be moved either

by a reasoned amendment explaining why the bill should not be read a

33. The Heath Government of 1970-74 proved less accommodating than the Wilson
Government towards surrender of Government time for private members’ bills. In the
three sessions from 1968 to 1971, eighteen balloted private members’ bills, seven under
S.O. No. 37 and five under the ten-minute rule became law. Surprisingly, ten private
peers’ bills also became law during this, period. See Burton and Drewry, loc. cit., p.
126. See also p. 228 for the failure rate. For the social influence of private members’
legislation, see Peter G. Richards, Parliament and Conscience (1970).
34. Local Government Act 1972, s. 70 (in force in April 1974).
35. ibid., s. 239.
36. cf. British Railways Board v. Pickin [1974] A.C. 765, above pp. 82-3.

The House of Commons: Functions and Procedure 267

 second time or by an amendment to postpone second reading. A private
bill may be simply ‘talked out
5
member’s because the allotted time has
expired. Private bills are normally unopposed at second reading.
* Historically the second reading stage has always taken place in the
•House itself. Under recent amendments to standing orders, the second
reading debate on a bill may be conducted in committee in two sets of
circumstances:

1. On the motion of a Minister, a bill certified by the Speaker as relating

exclusively to Scotland may be referred to the Scottish Grand Committee
(consisting of all members for Scottish seats, with a sprinkling of Sas-
senachs to redress the political balance) for this purpose (S.O. Nos. 67,
68), provided that fewer than ten members object.

2. Any other public bill may now similarly be referred to a special second
reading committee, consisting of between sixteen and fifty members,
provided that ten days’ notice of the motion is given and fewer than twenty
members object (S.O. No. 66). To the end of the 1975-6 session, bills had
only been so referred in the sessions 1964-5, 1966-7, 1970-71, 1971-2,
1972-3 and 1973-4.

The committee reports to the House, which formally resolves that the bill

be read a second time.

Money resolution
had to be considered in Committee of
Till 1967 financial clauses in a bill
the Whole House, with the Speaker out of the chair; 37 the Speaker then
reoccupied the chair and the financial resolution was formally reported
to the- House. To save time, the financial resolution has now been tele-
scoped into a single stage, the Speaker remaining in the chair. The necessary
motion must still be moved by a Minister.

Committee stage
%

The committee stage of a bill follows second reading. It is the stage most
likely tobe guillotined if the two sides of the House are unable 4:o agree
on a timetable. There has been a big increase in the use of standing com-
mittees since the Second World War. Now all public bills other than the
annual bills providing for public expenditure and bills for the confirmation

37. The need for the Speaker to leave the chair on such occasions was explicable
on the grounds that the power of the Commons to withhold taxes and supplies from
the Crown was historically of paramount importance, and the Speaker had at times
been under the monarch’s influence.

268 Parliament and Legislation

 of provisional orders 38 go to standing committees unless the House other-
wise resolves; since 1968 the annual Finance Bill (providing for taxation)
has been taken wholly or partly in standing committee. The alternative is
for a bill to be taken in Committee of the Whole House, which means that
the House cannot proceed with any other business while the committee is
sitting. Bills that are thought by the Government to be straightforward
and not seriously controversial, and bills of major constitutional im-
portance (such as the European Communities Bill or a bill to reform the
Lords or alter the distribution of seats in the Commons) will be debated
in Committee of the Whole House. The prospect of massive expenditure
of time on the Parliament (No. 2) Bill in Committee of the Whole House
induced the Government to withdraw it in April 1969; if the bill had been
sent upstairs to a standing committee in the first place, the Government
might perhaps have maintained patience. 39
Standing committees consist of between sixteen and fifty members,
chosen by the Committee of Selection in accordance with party strengths, 40
and having regard to their special qualifications. They usually sit in the
mornings. Scottish bills may be committed to a Scottish standing com-
mittee unless the second reading has been opposed by more than six
members, 41 and bills dealing purely with Wales and Monmouthshire to
a standing committee including all M.P.s from that area. 42
In committee amendments to individual clauses of the bill are debated 43 ;

if no amendment to a clause is put down, that clause cannot be discussed

except on the motion that the clause stand part of the bill. Proceedings are

38. Certain public general Acts empower Ministers to make provisional orders
conferring special powers on public authorities. These orders are provisional in that
they do not have effect till confirmed by a Provisional Order Confirmation Act. A
provisional order usually entails a local inquiry at which objectors may be heard ; the
provisional order confirmation bill is technically a public bill, but its committee
stage is similar to the committee stage of a private bill (see below).
39. See p. 286. But if a guillotine motion had become necessary at any stage, the
Government would have been apprehensive about the outcome, given the opposition
of many of their backbenchers to the bill.

40. If the Government does not have a majority in the House, the best it can hope
for is parity with combined opposition parties on standing committees. This was the
solution arrived at in 1976 when the Government, following the loss of a by-election
and the defection of an M.P. to the Opposition benches, for some months became a
minority Government.
41. S.O. Nos. 67(4), 68.
42. S.O. No. 73(2); such a committee is seldom constituted. There is also a delibera-

tive Welsh Grand Committee, composed of all those M.P.s and up to five others
(S.O. No. 72). Since 1975 there has been a Northern Ireland Committee, consisting of
all Northern Irish M.P.s and not more than twenty others, which considers such

matters affecting the province as may be referred to it (S.O. No. 72A).

43. Subject to the chairman’s power to select amendments; sec p. 262.

The House of Commons: Functions and Procedure 269

 rather less formal than in the House; members may speak more than once
to the same question. The Law Officers of the Crown have the right
to attend standing committees and take part in their deliberations, but
they are not entitled to vote unless they are members of the committee;
their presence is often important, for obscurities in drafting need to be
clarifiedand the implications of proposed amendments made clear. The
Minister in charge of a bill (who can speak on a Finance Bill even if he is
not a member of the committee) will frequently put down amendments to
his own bill in committee in the light of afterthoughts by members of the
Government or officials or parliamentary draftsmen, or other represen-
tations made from inside or outside the House following second reading.
Amendments put down by backbenchers or the Opposition front bench
will sometimes be accepted, or withdrawn on the understanding that the
Minister will reconsider the matter in an attempt to meet the point in an
alternative formulation. Hundreds of amendments were made to the Local
Government Bill 1972 during its passage through Parliament. The Euro-
pean Communities Bill, on the other hand, though intensely controversial
and a prodigious consumer of parliamentaiy time, was not amended at all.
To anyone -at all familiar with American legislative bodies, it will be
apparent that proceedings in committee on a bill are fundamentally
different in the two countries. In the United States an enormous number
of bills will be introduced; for practical purposes they will begin their
careers in committee and will often fail to re-emerge; if they are ‘reported
out they will have to compete with a great many others to complete
still

their remaining stages; the personal influence of the committee chairman

may be decisive. The committee stage is inquisitorial and the committee
will be small; oral and written testimony will be taken from members of
the executive branch, outside experts, and representatives of interest
groups. The only British analogy with the congressional legislative com-
mittee is the select committee. But only in exceptional circumstances will a
44
bill be committed to a select committee; in Britain such a committee is
used predominantly as a device for parliamentary scrutiny of adminis-
tration. However, statute law revision bills (to clear away dead wood
from the statute book) 45 and consolidation bills (to bring together all the
existing statute law on a matter in one Act, subject to minor modifica-
46
tions) go to a joint select committee of the two Houses. Such bills now
emanate from the Law Commissions.
44. Bills on the Queen’s Civil List and on the armed forces have gone
discipline of the
to select committees. They also have to go through a
normal committee stage.
45. See, for example, the Statute Law Revision Act 1966 and the regular Statute
Law (Repeals) Acts drafted by the Law Commissions.
46. Some interesting variations from ordinary legislative procedure are prescribed
by the Consolidation of Enactments (Procedure) Act 1949. Quaere whether observance
of the special procedure laid down is mandatory. See Erskine May, op. cit., pp. 524-5.

270 Parliament and Legislation -

 Proceedings in committee on an unopposed private bill and also on a
47
hybridbill and to a large extent on a provisional order confirmation bill
,

are quite different from thoseon public bills. A private bill will be con-
sideredby a small committee, of four in the Commons or five in the Lords.
The bill will have been drafted by parliamentary agents. The promoters
must prove the preamble, stating the facts accounting for the bill and its
objects, to the satisfaction of the committee; petitioners against the bill,
having established their locus standi may argue against the preamble and
,

put down amendments to clauses; the parties may be represented by

counsel, call evidence and make submissions. The proceedings of the
committee have the outward trappings of a quasi-judicial contest between
parties, though the committees may give paramountcy to extraneous
factors directed to the furtherance of the public interest.

Report stage

The bill, amended, is reported to the House. The Speaker takes the
as
chair. If a private bill, the report stage may be a formality. If a public
it is

bill considered in Committee of the Whole House emerges unamended,

there is no report stage. If a bill has been considered in standing committee,

other members may wish to put down their amendments on report, subject
again to the Speaker’s power of selection. Again, if the Government has
afterthoughts it may decide to put down amendments or new clauses or
schedules on report. It is possible for a bill to be sent back to committee at
report stage. Bills considered at second reading in standing committee or by
the Scottish Grand Committee may have their Report stage taken before
such a committee if a Minister so moves and fewer than twenty members
48
object .

Third reading

More often than not, a bill is read a third time immediately the report
stage is The third reading will not now be debated at all unless
concluded.
six or more members give notice that they wish for a debate or a post-
ponement 49 If there is a debate, it will be brief and general in its terms.
.

Only minor verbal amendments may be made; the bill may, theoretically
at least, nevertheless be rejected at the end of the debate.

47. As to hybridity, see S.O. No. 38. The furious parliamentary debates in 1976-7
over whether the Aircraft and Shipbuilding Industries Bill ought to have been
passed by the special hybrid procedure cast light as well as heat on the subject of
hybridity.
48. S.O. No. 73. A standing committee (other than the Scottish Grand Committee)
so constituted must have between twenty and eighty members.
49. S.O. No. 56.

The House of Commons: Functions and Procedure 271

Lords ' bills and amendments

The procedure on bills in the Lords is similar to that in the Commons,

but there is no money resolution stage and the committee stage is taken
in the whole House, with the Lord Chairman of Committees in the chair,
and there is no provision in standing orders for the closure or guillotining
of debate. A public bill passed by the Lords cannot become law unless the
Commons also pass it. A public bill passed by the Commons can become
law under the Parliament Acts procedure although the Lords fqil to pass
it without amendment or reject it. Disagreements between the two Houses

on clauses of a bill may be resolved in this manner, but it is more usual for
one House (normally the Lords) to give way or for a compromise to be
reached; a small committee is appointed by one House to give reasons
why it disagrees with the other’s amendments.

Quorum in the Commons

The general rule (subject to exceptions for certain hours and days and
certain types of business) is that the quorum of the House and in Com-
50
mittee of the Whole House is forty. This means not that forty members
have be present in the chamber at all relevant times, but that if
in fact to
the House on a motion, the business under discussion stands over
divides
till the next sitting unless forty or more members have taken part in the
division. It is the responsibility of the Government whips to ensure that a
sufficient number of their backbenchers are in the vicinity of the chamber
to scurry in when a vote is called for. In standing committee the quorum
51
is one-third of its members or seventeen, whichever is the less.

Royal assent
Under the new procedure introduced by the Royal Assent Act 1967, the
House can simply be notified that the royal assent to a bill has been
granted, and it does not have to interrupt its proceedings and adjourn
to

the Lords’ chamber to hear the royal assent signified orally.

Community legislation
Community legislation directly applicable without further enactment in
country 52 does not pass through any of these stages. Such
legislation
this

50. S.O. No. 29.

51. S.O. No. members’ bills are no longer * counted out*.
65(1). Private
52. European Communities Act 1972, s. 2(1).

272 Parliament and Legislation

consists mainly of regulations made by the Council of Ministers or the
Commission. In Community law, regulations are secondary legislation. In
United Kingdom law they must rank as primary and not delegated legis-
lation. Existing and new machinery has been used to scrutinize Com-
munity matters. Thus it has become customary for part of question time
to be given over to Community matters; Ministers make statements to the
House on their part in the Council of Ministers; and there are periodic
debates. The new machinery centres in the House of Commons (similar
provision is made in the Lords) on the Select Committee on Euro-
pean Legislation, which considers draft Community legislation and
other documents published by the Commission for submission to the
Council. The Government prepares explanatory memoranda, and the
Committee can seek information from Government departments. The
Committee is charged with drawing the attention of the House to docu-
ments which raise questions of legal or political importance, to report what
matters of principle or policy may be affected thereby, and to make recom-
mendations to the House. The Government finds time to debate those
materials which the Committee recommends for debate. But difficulties
remain, primarily as a result of the mass of paper which the Committee
and M.P.s must try to examine.

Financial procedure

The main departmental responsibility for the management of the national

economy rests with the Treasury, under the Chancellor of the Exchequer 53 .

A Department bearing the main brunt of decisions affecting national

income and expenditure, the value of the pound, the country’s inter-
national balance of payments and the cost of living is necessarily of
crucial importance.
The initiative Treasury alone 54 The details
in tax policy is vested in the .

of the Chancellor of the Exchequer’s budget speech are revealed to his

Cabinet colleagues only the day before it is delivered in the House. In
matters of public expenditure, Treasury approval is required for all large-
scale items, not only at the central departmental level but also by public
corporations and, directly or indirectly, by local authorities. The hand of
the Treasury extends to approval of the standard terms of Government
contracts and pricing policies. The influence of the Treasury at any given
time is, of course, partly dependent on the personal stature of the Chan-
cellor, and his ability to carry the Prime Minister and the Cabinet along

53. See generally Samuel Brittan, Steering the Economy: The Role of the Treasury ;
Lord Bridges, The Treasury Henry Roseveare, The Treasury. From 1964 to 1969 there
;

was a separate Department of Economic Affairs.

54. Subject to Community rules: see below.

The House of Commons: Functions and Procedure 273

 ,

with him. That influence has traditionally been exercised in the interests of
economy and caution. In 1958 Mr Peter Thorneycroft, unable to convince
the Cabinet of the need for scaling down the annual estimates, resigned
with his two junior Ministers; the Macmillan Government survived his
departure.
No attempt will be made here to present a general review of -public
finance. Instead, the raising of taxes and expenditure of public money
will be viewed in a parliamentary context.

Taxation

Taxes are collected by or under the Board of Inland Revenue, the Board
of Customs and Excise and the Estate Duty Office. Some taxes - for
example, stamp duties, capital transfer tax - imposed by statute have effect
till the statute is amended. Others - notably income tax, customs and

excise duties - have effect only till the end of the tax year and require
renewal by Parliament in the annual Finance Act. No charge may lawfully
be levied on the subject by the Crown except under authority conferred
by express statutory language; the fact that an Act may be unworkable
unless charges are imposed in the course of its administration is irrele-

vant. 55
However, membership of the Communities will have major consti-
tutional effects. First, the United Kingdom has agreed to adopt the
Communities’ common external tariff and its agricultural policy (involving
the imposition of import levies) over a five-year transitional period. 56
Secondly, the rates of customs duties and agricultural levies can be varied
by directly applicable Community regulations. 57 Thirdly, the Com-
munities are to be progressively financed out of their ‘ own resources '
which will comprise the proceeds of customs duties 10 per cent for
(less
the cost of administration), agricultural levies, and eventually up to 1 per
cent of a harmonized value added tax, all collected by member States for

55. The leading case is Att.-Gen. v. Wilts United Dairies Ltd (1921) 37 T.L.R. 884.
See also Liverpool Corporation v. Maiden ( Arthur ) Ltd [19381 4 All E.R. 200 (local
authorities).The Bill of Rights provides that no charge on the subject shopld be levied
by pretence of prerogative without the consent of Parliament, but the principle stated
in the text above ranges beyond prerogative exactions and, indeed, beyond central
government. However, charges may be imposed by the Crown on the subject without
express statutory authority for providing services ( China Navigation Co v. Att.-Gen
. .

[1932] 2 K.B. 197) which under no prior legal obligation to furnish.

it is

56. See The United Kingdom and the European Communities (Cmnd 4715 (1971)). An
Intervention Board for Agricultural Produce has been set up to implement the agricul-
tural policy (European Communities Act 1972, s. 6).
57. European Communities Act 1972, ss. 2(1), 5, 6.

274 Parliament and Legislation

Community purposes. 58 United Kingdom authorities will be levying and
collecting money under Community law as agents for the Communities .

Moreover payments required to meet Britain's Community obligations will

,
59
be charged on the Consolidated Fund.
Before 1968 the budget was introduced in the. Committee of W?y?
Means, a Committee of the Whole House, with the Speaker out of the
chair. This committee has now been abolished and the budget statement
is made bythe Chancellor in the House itself. At the same time, a White
Paper published containing a financial statement and commentary on
is

the budget; this now includes economic data for the recent past and
predictions for the immediate future, indicative both of the broader
range of the Treasury’s functions and of pressure to give the public fuller
information.
The budget will normally be introduced in late March or early April.
For tax purposes the financial year runs from 6 April to 5 April in the fol-
lowing year. The Finance Bill, incorporating tax legislation, is unlikely to
receive the royal assent till late July. But authority to collect the most re-

munerative taxes have expired on 5 April. In order to bridge this gap,

will
60
statutory authority exists to enable essential taxes to be levied im-*
mediately after the budget. As soon as the Chancellor sits down, resolutions
approving these tax proposals are passed and have statutory effect forth-
with by virtue of the Provisional Collection of Taxes Act 1968. Under
section 5 of this Act (as amended), resolutions can be (and are) passed,
61
giving provisional statutory effect, for ten days, to the proposed new rates
of income tax, value added tax, corporation tax and customs and excise
duties for the financial year; they must be confirmed by the House within
ten days; the Finance Bill must be read a second time within twenty-five
days and passed into law by 5 August, if the resolutions were passed in
March or April, or within four months in other circumstances; otherwise

58. This was agreed by the Communities in 1970 (Cmnd 4867 (1972)), and promul-
gated by a Community
regulation in 1971, subject to modifications agreed in the
instruments of accession (Cmnd 4862 - 1 (1972), pp. 51-3). See also European Com-
munities Act, s. 1, Sched. 1, para. 6. Till 1980 payments by this country will be lump
sums fixed as percentages of the Community budget.
European Communities Act 1972, s. 2(3). See for Consolidated Fund Services,
59.
p. 278. The purpose of charging these monies on the Consolidated Fund is to reduce
parliamentary scrutiny over them. See further 831 H.C.Deb. 1137-1242 (22 February
1972).
60. It was needed because such taxes could not lawfully be imposed merely on the

strength of budget resolutions: Bowles v. Bank of England [1913] 1 Ch. 57. The
position was regulated for the future by the Provisional Collection of Taxes Act 1913.
61. See also s. 1 of the 1968 Act, under which the resolutions can be given firm
statutory effect (subject to the provisos mentioned in the text above) without a con-
firming resolution.

The House of Commons: Functions and Procedure 275

the collection of taxes on the basis of the resolutions becomes retroactively
invalid. This tends, of course, to restrict the period in which it is practicable
to dissolve Parliament.
Debate on the budget will continue for several
days on a general
resolution which does not have to be passed forthwith. The Finance Bill
is then published and read a second time. At the committee stage - if taken

in standing committee, many additional days become available for the

business of the House - a very large number of amendments will be put
down and some will be accepted or compromise amendments put down
by the Government. The Government cannot be too amenable, because
the sum to be raised by taxation is geared both to its general economic
policy and its commitments as to the quantum of expenditure, but minor
concessions are possible. Since there will not have been a full range of
prior consultations with interest groups or expert committees before the
budget is introduced, the practical implications of the proposed changes
in tax law will not always have been appreciated by the Treasury, and it
may welcome suggestions - for example, that a particular tax will cause
undue hardship or be too difficult or costly to enforce. The bill will usually
also modify aspects of tax law which do not need annual enactment.
Amendments will again be put down when the bill is reported to the
House. After third reading, proceedings in the Lords will be a formality.
The passage of a Finance Bill is not invariably smooth, but there can
be no comparison with the course of events in the United States Congress.
In 1968 the Committee of Ways and Means of the House of Representatives
successfully insisted on a reduction of $6,000,000,000 in the Adminis-
tration’s ‘budget’ (i.e. proposals for expenditure) before consenting to a
10 per cent tax surcharge.
Supplementary budgets and other legislation to levy money (for ex-
ample, to introduce higher National Health Service charges) may be
introduced during a parliamentary session. In the autumn ‘budget’ of
1970, the Chancellor of the Exchequer took the extraordinary step of
announcing that there would be a reduction in the standard rate of income
tax in the next annual budget.

National expenditure

Public expenditure also requires statutory authority. About two-thirds of

central government expenditure is customarily authorized on an annual
basis.
As expenditure in the public sector of the national economy has grown,
new machinery for coordinating departmental programmes has had to be
constructed. An inter-departmental Public Expenditure Survey Corn-

276 Parliament and Legislation

mittee (PESC) was set up medium-term
early in the 1960s to consider the
implications of existing policies. 62 In December 1969 the Treasury pub-
lished the first ofits annual projections of public expenditure extending

over a five-year period. 63 Within this general framework, detailed annual

spending programmes are evolved. During the summer decisions are
taken on the aggregate of public expenditure for the next financial year
and functional priorities are determined. Towards the end of the same
calendar year, the departmental estimates are prepared and discussed with
the Treasury. Departmental freedom of action will have been curbed by
the decisions taken in the summer. The Treasury’s own freedom of
manoeuvre economies will also have been fettered by those
in effecting
decisions, by international commitments and by legislation providing for
social security benefits, as well as a variety of domestic political con-
siderations influencing the direction and amount of government spending.
Bulky volumes of the estimates are published in February and March.
They are divided into classes, ‘votes’ (for individual Departments, sub-
Departments, and certain other bodies financed out of central funds),
sub-heads and further details; the corresponding figures for the current
year are set out. For the purpose of national expenditure, the financial
year extends from 1 April to 31 March. Parliament has to debate the
estimates - redress of grievances precedes supply - and the result of its
deliberations (or rather, the deliberations of the House of Commons)
will be embodied in the Appropriation Act, which is usually passed in
July. The Act authorizes the withdrawal from the Bank of England, and
the expenditure, of the sum total of the estimates, and appropriates in its
schedules money for prescribed votes. But the Government needs draw-
ing and borrowing powers before this. To bridge the gap, a sum (called
the vote on account) authorizing the prospective expenditure of 35 to
40 per cent of the total sought will be granted by one or more Consolidated
Fund Acts passed before the beginning of the financial year. These Acts
will also authorize expenditure on supplementary estimates for the year
just ending, and may ratify an excess vote to a Department which over-
64
spent its allotted sum in the previous year.
Those items of expenditure for which annual authority is needed are

62. SeeH.C. 410 (1968-69), pp. 19-22, for its place in the modern scheme. For the
earliersystem and recommendations for change, see the Plowden Report on the
Control of National Expenditure (Cmnd 1432 (1961)).
63. Cmnd 4234 (1969). This was foreshadowed by proposals advanced in Cmnd
4017 (1969).
64. Unappropriated sums can be made available in an emergency out of the Civil
Contingencies Fund. Such grants are scrutinized by the Comptroller and Auditor-
General and the Public Accounts Committee (see below) and are often the subject
of a critical report.

The House of Commons: Funqtions and Procedure 277

called Supply Services; the others (comprising interest on the national
debt, the Civil List, and the of judges, the Speaker, the Leader of
salaries
the Opposition and other persons whose conduct in office ought not to be
the subject of annual debate, and now sums required for the discharge of
Community obligations) are Consolidated Fund Services. The Con-
Fund is a notional account kept at the Bank of England. In
solidated
1968 many of its functions and revenues were allotted to a new account,
the National Loans Fund. 65
An annual two-day debate now takes place in the House of Commons
on the Government’s general projections of public expenditure. Debates
on the estimates used to be conducted mainly in Committee of Supply,
another Committee of the Whole House; this too has been abolished,
and since 1967 supply business has been conducted in the House as
normally constituted, or in the Scottish Grand Committee. Twenty-nine
(not necessarily consecutive) parliamentary days are devoted to supply;
this includes debates on the main estimates, supplementary estimates,
excess votes and reports from the select committees of the House dealing
with expenditure. These debates are no longer seriously regarded as if they
were a form of detailed scrutiny of expenditure; in any event the estimates
are treated by the Government as matters of confidence and are always
approved by the House. No member (not even a Minister) can move a
motion to increase an estimate or to spend money on another object. The
choice of topics to be debated is, by convention, left to the Opposition.
Traditionally the peg on which debate is hung has been a motion to
reduce the Minister’s (or the Department’s) vote by a nominal sum;
now a more widely or narrowly framed motion - even a motion to annul
a statutory instrument - can be put.down on a supply day. The Opposition
uses its time to criticize aspects of Government policy; the gist of its
criticisms may well be that too little money is being spent or that money is
being spent on the wrong objects. The content of a debate may bear no
direct relationship to expenditure at all - for example, policy towards
Rhodesia. Debates on the Consolidated Fund and Appropriation Bills are
occasions for motions by private members successful in a ballot; thus,
one finds that the honourable member for Orpington addressed the House
on the second reading of the Appropriation Bill from 5.19 a.m~to 5.43
a.m. one July morning in 1969 on the tribulations of gypsies, and elicited
a ministerial reply. 66

65. See' National Loans Act 1968.

66. Expenditure for the fulfilment of Britain’s Community obligations, being a
Consolidated Fund Service, probably cannot be debated on a supply day except
perhaps’ in the context of a report by the Expenditure Committee. It could be debated
in connection with a Consolidated Fund Bill.

278 Parliament and Legislation

 ;

The task of scrutinizing government spending is entrusted to two select

committees of the House, which have attained the dignity of a place in
standing orders. In 1971 the Estimates Committee 67 was replaced by an
Expenditure Committee, consisting of forty-nine members. 68 Its terms of
references are to consider papers on public expenditure (including the
estimates) presented to the House and to consider in particular how the
policies implicit in them can be carried out more economically. Like all
select committees it has power to send for persons, papers and records*
it can examine Ministers and civil servants; the Government does not,
however, make the contents of departmental files freely available on
69
request. It works mainly through sub-committees, and it has power to

engage expert assistance for particular inquiries. The Estimates Com-

mittee was the only select committee empowered to maintain a general
oversight over efficiency in central administration, and it had scrutinized
matters as diverse as penal institutions, the legal aid scheme, the BBC
and expenditure on British bases overseas. But it was understaffed and
overstretched, and its searching reports were not always taken seriously
by Departments. The Expenditure Committee, a higher-powered body
with slightly broader terms of reference, was soon experiencing one of its
predecessor’s problems. After eighteen months it had published ten reports,
covering topics such as the British Council, government expenditure on
education and the arts, the probation and after-care service, and National
Health Service facilities for private patients, but only three had been
debated in Parliament and Departments were being characteristically
70
dilatory in commenting on its recommendations.
The Public Accounts Committee71 was established in 1861 and is
composed of fifteen members. Although, as in all select and standing
committees, they are selected according to party strengths, the committee
is scrupulously non-partisan - so much so that there is a well-settled

convention that its chairman shall be a member of the Opposition; he is

usually a former junior Minister at the Treasury. It scrutinizes the public
accounts (appropriation accounts) which have been drawn up by the
Comptroller and Auditor-General and his Exchequer and Audit Depart-
ment, and may recommend changes in the form of the accounts. In addi-
tion, it is entitled to examine the expenditure of other sums voted by

67. See Nevil Johnson, Parliament and Administration .

68. S.O. No. 87.
69. See Cmnd 3479 (1968) for a refusal by the Foreign Office to supply confidential
information sought by the Select Committee on Agriculture.
70. See its H.C. 476 (1971-72).
special report,
Chubb, The Control of Public Expenditure ; Gordon Reid, The Politics
71. See Basil
of Financial Control E. L. Normanton, The Accountability and Audit of Governments;
H.C. 410 (1968-69).

The House of Commons: Functions and Procedure 279

 Parliament, and those accounts of public bodies which have
been laid
before Parliament, even though the Comptroller and Auditor-General
has
not audited them.
The Exchequer and Audit Department has a staff of some five hundred.
It conducts a continuous audit within the Departments and carries
out
special test audits; it works closely with the departmental
accounting
officers, who are normally the permanent secretaries.
The Comptroller
and Auditor-General also has the responsibility for checking the legality
of withdrawals from the Consolidated Fund and the National Loans
Fund. He is an independent public officer, not a civil servant; he is
appointed by the Crown on the Prime Minister’s advice but is removable
only for misbehaviour in pursuance of an address from both houses of
Parliament, and his salary is charged on the Consolidated Fund.
The
Public Accounts Committee has before it his report on the accounts, and
he Sits with the Committee; this strengthens its position greatly when it
interrogates the departmental accounting officers. Its reports draw atten-
tion not only to financial irregularities but also to wasteful
and extravagant
expenditure and imprudent contractual transactions. They are treated
with the greatest respect in Whitehall. Its weakness is that the malpractices
or blunders to which it refers will have occurred not less than a year
beforehand and sometimes a good deal farther back, and the money may
have been squandered beyond recall, as when financial irregularities
perpetrated by members of a body to which Professor de Smith had the
honour to belong at the end of the Second World War were responsible for
the loss of well over £50 millions to the Exchequer. 72 But the report of an
inquest may not be unproductive as a spur to remedial action; for instance,
the adverse report of the Public Accounts Committee on excess profits
made by an armaments firm under a contract for the supply of a guided
missile led to a repayment by the firm and tighter contracting procedures.
This committee, then, is an indispensable watchdog, highly effective in
its own limited area; its bark causes quicker reactions than the bites of

others. The Comptroller and Auditor-General and the Public Accounts

Committee have now been given access to the accounts of university
institutions in receipt of central government funds. Whether this will
prove to be a form of parliamentary scrutiny encroaching but mildly
upon traditional academic autonomy is still a matter for conjecture.

Scrutiny of policy and administration

Under Standing Order No. 22, the Speaker or chairman may direct a
member who persists in tedious repetition to discontinue his speech. This
72. For the doleful tale see H.C. 115 (1946-47).

280 Parliament and Legislation

 is a useful working rule; and this important section will therefore be
abbreviated.
The general role of the official Opposition has already been considered.
Its main procedural opportunities for criticizing the Government or
individual members arise in the debate on the address in reply to the
Queen’s speech at the beginning of a session, debates on the budget and
on supply days, debates on motions of censure or other substantive
motions (for example, on a formal motion for the adjournment) for which
the Government gives up part of its own time, second reading debates,
and at question time. But the time saved by recent procedural changes
enabling more legislation to be considered in standing committees has
been filled by Government legislation rather than general debate. 73 Back-
benchers have their opportunities on the occasions set aside for private
members’ motions, 74 on the motion for the adjournment each day and
before a recess, at question time and, if any succeed in catching the
Speaker’s eye, in the course of general debate. They can also put their
names to ‘early day motions’, which are in the nature of demonstrations
of protest, concern or occasionally loyalty; these motions are tabled but
are hardly ever debated in the House.
Ordinary business may be interrupted to debate a matter of urgency
under Standing Order No. 9. A motion to adjourn to discuss ‘a specific
and important matter that should have urgent consideration’ can be
moved by any member, at short notice, immediately after question time.
It lies within the Speaker’s discretion whether to allow the motion to be

put; leave is not readily granted. If this obstacle is overcome, and if the
motion is approved by the House or supported by forty members rising
in their places, the motion will be debated cither that evening or the
following day.

Members and question time 75

Members of Parliament receive some 250,000 letters from members of

the public each year,making complaints (often about their local authorities
or the conduct of a nationalized undertaking) which usually call for some
kind of remedial action or request for information. In addition, most
members hold local ‘surgeries’ to deal with the personal problems of their
constituents. If a matter calling for further action falls within the area of

73. H.C. 538 (1970-71), para. 4.

74. Under the Heath Government of 1970-74 twelve Fridays a session were devoted
to private members’ bills and eight to private members’ motions. See also p. 278 above.
75. See D. N. Chester and Nona Bowring, Questions in Parliament ; Patrick
Howarth, Questions in the House .

The House of Commons: Functions and Procedure 281

 .

ministerial responsibility, the member will usually write to the Minister

about it and perhaps talk to him personally; if no satisfactory answer is

received, the member may well decide to raise the issue at question time,
or pass a complaint alleging injustice caused by maladministration to the
Parliamentary Commissioner for Administration to investigate. If a grave
public scandal is suspected, and pressure is exerted on the Government, a
special independent inquiry or a formal judicial tribunal of inquiry may be
76
set up .

Tabling questions in the House is one form of obtaining publicity for

individual grievances; redress may be forthcoming because a parlia-
mentary question is threatened, or because it has been put down, or
because the answer given to the question is manifestly unsatisfactory and
the Minister feels that he is appearing in a bad light, or because the
member presses home his point by giving notice that he will raise the
issue again on a half-hourly debate on the daily adjournment; but if no
redress has been granted by question time, the likelihood is thatno redress
will be offered at all. A question to a Minister is rather a method of
ventilating a grievance than of securing a remedy.
Questions to Ministers may serve other purposes. They may even be
put for the purpose of eliciting factual information, in which case an oral
answer will seldom be requested the answer will then be given in .writing,
;

and circulated together with answers to oral questions which there was
no time to reach. (Question time lasts for some forty-five minutes, on
Mondays to Thursdays.) They may be inspired questions; a member is
asked to put down make a
a question so that the responsible Minister can
77
public statement . They may
and often are, carefully designed to
be,
cause a Minister the maximum amount of embarrassment. Although a
question for which an oral answer is requested must normally be tabled
two days in advance, the question may be an opening gambit, to be
followed by a supplementary question of which no prior notice is given 78 .

Parliamentary reputations have been made and ruined in the rapid cut
and thrust of question time. For a few minutes the House comes to life

76. See chs. 25 and 29 for the investigation of alleged abuses under the Parliamentary
Commissioner Act 1967 and the Tribunals of Inquiry (Evidence) Act 1921.
77. But a Minister should not carry this practice to a point where opposition ques-
tions cannot be put; nor should departmental civil servants be induced to take part in
such a game. See Report of the Select Committee on Parliamentary Questions (H.C.
393 (1971-72)).
78- But Ministers do not go like lambs to the slaughter, they are (or should be) ready
with supplementary answers. ‘One evening I found Churchill at the Cabinet table . .

“What you doing. Prime Minister?” I asked. “Oh, Parliamentary questions. Pre-
are
paring improvisations! Very hard work!’”: Macmillan, Tides of Fortune (1969), p.
496.

282 Parliament and Legislation

audibly and visibly: wit, 79 feigned or genuine outrage, cheers and jeers
intrude upon the solemnity of the proceedings; Government and Oppo-
sition are briefly locked in fascinating verbal combat; the Prime Minister
and the Leader of the Opposition may gain or lose a point or two in the
public opinion polls; a backbencher shows his ministerial potential, and
the House wonders how much longer the Minister of Cosmology can last.
Whatever may be the intrinsic value of parliamentary questions, their
popularity with the M.P.s is increasing. In the 1970-71 session there were
33,946 questions on the order paper, more than half requesting written
answers. 80
As has already been pointed out, 81 questions may and normally will
be refused if they relate to matters lying outside the field of ministerial
responsibility. Among inadmissible questions 82 are those on matters sub
judice , but the scope of this exclusionary rule has nowbeen narrowed so
as to enable the Speaker to admit questions in his discretion though they
relate to matters pending adjudication in a civil court, if the issue raised
concerns a matter of national importance or the exercise of a Minister’s
discretion challengeable only on narrow grounds before the court. 83

Specialized select committees of the House

A serious weakness of the House of Commons is the ineffectual role of

somany backbenchers - no less ineffectual because it cannot be quantified.
Able men and women discover that their opportunities to contribute
significantly to debate are few, that their influence on Government policy
from the back benches or in opposition seems negligible, that even in the
privacy of parliamentary party meetings the leadership is rarely moved by
their arguments and that the conduct of public administration cannot be
effectively scrutinized by the House. If Parliament is the grand inquest of
the nation, the roles of coroner and corpse are apt to be confused.

79. Winston Churchill, still Prime Minister at seventy-nine, was asked to constitute
a Ministry of Fisheries separate from the Ministry of Agriculture. Explaining his
refusal, he observed that ‘there are many ancient links between fish and chips’ (528
H.C.Deb. 2274).
80. H.C. 393 (1971-72), Minutes of Evidence, p. 58.
81. Seepp. 165-6, 213-14.
82. See Erskine May, op. cit., pp. 327-33.
83. 839 H.C.Deb. 1589-1627 (28 June 1972), a relaxation directly related to contro-
versial proceedings before the (since abolished) National Industrial Relations Court;
see H.C. 298 (1971-72). But, according to a recent Speaker’s ruling, the relaxation in
1972 was intended to be a deliberate one by the House of the sub judice rule in the area
of public policy, which was not confined to that Court or to the Act which established
it, and the Speaker intended to
exercise his discretion in favour of freer debate in every
case where he properly could: 916 H.C. Deb. 882-4 (29 July
1976).

The House of Commons: Functions and Procedure 283

 Any effective participation of backbench M.P.s in decision-making will
continue to present very great difficulties as long as Governments main-
tain majorities in the House with the aid of an electoral system under
which the winner can expect to take almost all, and as long as consti-
tutional rules leave the spending power entirely in the hands of the
Executive. But, as the experience of the Public Accounts Committee and
the Committee on Nationalized Industries has shown, it is possible,
within the existing British parliamentary system, for members to influence
the conduct of administration and to modify aspects of policy by their
scrutiny of administrative activity as membets of select committees.
In 1966 there existed the two select committees mentioned above, the
Estimates Committee and the Select Committee on Statutory Instruments.
Other select committees, not directly concerned with central adminis-
tration, were also appointed sessionally - for example, the Committee of
Privileges, a House of Commons Services Committee, an almost dormant
Committee on Public Petitions - and a Select Committee on Procedure
was regularly constituted. But in 1967 a new and potentially fruitful
experiment was begun. Two specialized select committees on agriculture
and on science and technology were appointed. Their terms of reference
were general, but it was understood that they would keep under review
and report to the House on the conduct of departmental administration
in the areas concerned. The experiment was not an unqualified success.
Some members proved wayward in their attendance; the committee on
agriculture became self-assertive and showed more interest than the
Minister in the agricultural policy of the Common Market; the relation-
ship between the committees, the civil servants whom they interrogated,
the responsible Ministers and the House whole was inevitably experi-
as a
mental, but proved more abrasive in its early stages than optimists had
hoped. The Select Committee on Agriculture was discontinued early in
1969 by a decision made by the Government and ratified by the House.
But it was succeeded by new specialized select committees - a committee
on education and science (which distinguished itself by sending a sub-
committee to visit centres of student unrest, thus evoking a sufficient
degree of disturbance for its own proceedings to be disrupted on two
occasions 84 ), a committee on race relations and immigration, a committee
on overseas aid, a committee on Scottish affairs and a small committee on
the Parliamentary Commissioner for Administration (which rapidly

84. On? of which (in the spring of 1969) was directly observed by Professor de Smith.
For the committee’s consequential report, including recommendations for closer central
Government control over aspects of higher education, see H.C. 449-1 (1968-69).
Most of its recommendations were disregarded.

284 Parliament and Legislation

 85
In 1970 the incoming Conservative Government
justified its existence).
decided to continue with the experiment on a more limited scale, but to
sponsor the establishment of a stronger Expenditure Committee. 86 The
committee on race relations and immigration continued to publish useful
87
reports. In 1972 the committee on science and technology, having
publicly disagreed with Ministers and the head of the Central Policy
Review Staff about the role of research councils and departmental organ-
ization for research, went on to publish a suppressed departmental report
on the role of Government in developing and exploiting inventions.
The committees have offered some detailed and imaginative suggestions
for administrative reorganization, and have made themselves, the House
in general, and interested members of the public, better informed about
and the views of the administered. This has at least
central administration
diminished the excessive concentration of inaccessible facts and in-
scrutable motives secreted within the ample bosom of the Executive. To
put the case for specialized committees inits most conservative form, they

will give some M.P.s something useful to do, and an awareness that they
are doing something useful. It is not difficult to criticize the committees
for being superficial, over-ambitious, tactless, ineffectual or even too
88
deferential. Far more difficult will be the task of maintaining and
strengthening a system of scrutinizing committees, especially as far as
Community affairs are concerned. 89

85. See further ch. 29.

86. Cmnd 4507 (1970); 806 H.C. Deb. 618-735 (12 November 1970). See also p.
289 on the Expenditure Committee. In December 1972 an acJ hoc select committee
was appointed to consider the Government’s proposed tax credit scheme.
87. Sec, lor example, p. 376, note 38.
88. Deference has been attributed by the originator of the experiment to the fact that
members are chosen by the whips and tend to pull their punches for fear of impairing
their hopes of preferment: Richard Crossman, Inside View , pp. 103-4. it mui*. 1
, of
course, be assumed that because the committees have been criticized for incompatible
reasons none ol the charges is to be taken seriously. For preliminary assessments, see
Alfred Morris (ed.), The Growth oj Parliamentary Scrutiny by Committee; A. H. Hanson
and Bernard Crick (eds.). The Commons in Transition ; John P. Mackintosh, The
Government and Politics of Britain , ch. 10; Richards, The Backbenchers, ch. 6. Most are
pessimistic.
89. See above p. 273.

The House of Commons: Functions and Procedure 285

 Chapter 13
The House of Lords

Prologue

In November 1967 the Labour Government initiated formal discussions

with representatives of the two main opposition parties with a view to
arriving at an agreed scheme for the reform of the composition and
functions of the House of Lords. By June 1968 a large measure of agree-
ment had been reached. Then the Government, irritated by the refusal of
the Lords to approve (at the time of asking) an Order in Council
first

imposing mandatory UN sanctions against Rhodesia, broke off the talks

and produced its own scheme, closely based on what had already been
agreed. A
White Paper embodying the Government’s proposals was
1

debated in November 1968. It was approved in principle by the Commons

by 270 votes to 159. The breakdown of the voting figures is remarkable;
although the Government had put on a three-line whip, and although the
Opposition front benches were in general sympathy with the proposals,
forty-five Labour backbenchers, 104 Conservatives, eight Liberals and
two other members voted in the Noes lobby. The Lords agreed to the
proposals by 251 votes to 56.
Nevertheless (or perhaps consequently) trouble lay ahead for the
Government. A 2
bill to implement the proposals was read a second time

in the Commons. But when it went to Committee of the Whole House, a

multitude of amendments were put down by backbenchers. Many mem-
bers objected to the excessive patronage that the scheme would have
placed in the Prime Minister’s hands; some Conservatives objected to the
erosion of the hereditary principle or the weakening of the party’s strength
in the upper House; some Labour members saw the proposals as a
means of shoring up a crumbling citadel of aristocratic privilege and
wealth which ought to be demolished altogether or left alone to crumble
away. In the end the Government gave up. In April 1969 it withdrew the
bill, to make room for a still more controversial Industrial Relations Bill
which was never introduced at all during that Parliament.

1. House of Lords Reform (Cmnd 3799 (1968)).

2. It was generally known as the Parliament (No. 2) Bill.

286 Parliament and Legislation

 To the 1968-9 proposals for reform of the Lords '\c shall r t, lrn< ft

Perhaps proposals like them will be revived. Yet prediction would be

unwise. More than sixty years ago a General Election was fought on the
slogan ‘end or mend’ the Lords. Since then, four quite substantial measures
have been passed, bringing the House into closer rapport with modern
views about British governmental institutions. But the House s till remains
to outward appearances a preposterous anachronism, to be derided rather
than admired. Strange to say, it is the best second chamber in the Com-
monwealth and one which stands comparison with its counterparts in
almost any developed country one cares to mention.

Composition
Introduction

Some legislatures are born bicameral, some achieve bicameralism, some

have bicameralism thrust upon them. Many have sustained themselves
unendowed with this benefit; some - New Zealand, for example - have
shed or been bereft of their second chamber, reverting to unicameralism
without disastrous consequences. The English Parliament was not exactly
born; somehow it grew up, but as a bicameral institution. From the
Great Council of the Realm in Parliament two Houses emerged. The
House of Lords, the direct lineal descendant of the Great
evolution of the
Council, was none the less halting and irregular. At first the King’s tenants
in chief and great officers of State and the prelates attended the Great
Council soon the lesser tenants in chief came to be represented by the
;

knights of the shires. A concept of baronage and hereditary peerage was

already developing by the end of the thirteenth century; the onerous duty
of attendance became a right to attend by virtue of inheritance of a peerage. 3
With the disappearance of the abbots and those officers who were not
ennobled, the modern House of Lords had taken shape by the middle of
the Tudor period. 4 The Commons clearly had the dominant voice in
taxation, but the Lords indirectly maintained ascendancy in Parliament
by virtue of their social status (which brought some of them close to the
monarch), the deference paid to the landed gentry and the episcopacy, and
the influence of wealthy individual peers over elections to and allegiance
within the lower House. The Reform Act of 1832 sounded the knell; the
political influenceof the Lords was undermined by further extensions of
the franchise and the growth of mass parties; the Parliament Act of 1911
definitively emphasized the primacy of the Commons, and the upper
House was shorn of all pretensions to a prominent place in the nation’s
affairs.

3. See J. Enoch Powell and K. Wallis, The House ofLords in the Middle Ages (1968).
4. Separate Lords’ Journals go back to 1521.

The House of Lords 287

Membership

The superior judges and the Law Officers of the Crown still receive writs
of summons to attend with the Lords at the opening of a new Parliament,
but they never take part in the proceedings of the House unless they are
peers. The following are entitled to membership:

1. The Lords Spiritual. These are the Archbishops of Canterbury and

York, the Bishops of London, Durham and Winchester, and the next
twenty-one senior diocesan bishops of the Church of England, seniority
being determined by the date of appointment to a see; they cease to be
eligible to sit as Lords Spiritual after retirement. Other ecclesiastics may
sit only if granted peerages. The 1968 proposals for Lords’ reform en-

visaged a reduction in the number of bishops to sixteen. In early Tudor

times the Lords Spiritual had constituted half the membership of the
House.

2. Hereditary peers of England (before 1707), Great Britain (1707-1800)

and the United Kingdom (1801- ): they are dukes, marquesses, earls,
5
viscounts or barons. In 1977 they were over nine hundred in number;
more than half of the hereditary peerages of the United Kingdom had
been created (on the advice of the Prime Minister) since 1900, though
none was conferred from 1965 to the time of writing. Some of the surviving
ancient hereditary peerages were created by the issue of a royal writ of
summons followed by the actual taking of the seat; such peerages de-
scended to heirs general, including women. All modern hereditary peerages
have been created by letters patent; they do not descend to women unless
there is an express provision in the letters patent for inheritance by heirs
female. But although a woman might be a peeress in her own right, she
had no right at common law to take a seat in the Lords; and this disability
(Re-
was not removed by the general words of the Sex Disqualification
6
moval) Act 1919: see Viscountess Rhondda's case (1922). Under the
Life

peerage conferring the right to sit can be bestowed

Peerages Act 1958 a life
upon a woman ; and the Peerage Act 1963 enabled all peeresses in their
own
7
right to sit in the Lords.

5. The holder of a peerage other than a dukedom may simply be

known as ‘Lord*
be caused by courtesy
Some confusion can
X. A baron is almost invariably so styled.
titles’; thus, the eldest son of the Duke of
Marlborough has the courtesy title of the
Marquess of (or Lord) Blandford, but he is not a peer.
6. [19223 2 A.C. 339 -an unconvincing
report by a majority of the Committee of
of the House of Lords, praying in aid the presumption of statutory
intent
Privileges
change.
against the indirect introduction of major constitutional
7. The wife of a peer is not, as such, a peeress
in her own right. She may be elected

to a seat in the Commons.

288 Parliament and Legislation

 3

3. Peers of Scotland, who have inherited peerages created before the Act
of Union. 8 Till the Peerage Act 1963 they elected sixteen of their own
number to represent them for the duration of a Parliament; now they
have an unrestricted right to take their seats. Peers of Ireland no longer
have any right to sit in the Lords 9 but may be elected to the Commons.
4. Life peers, number over two hundred
created under the 1958 Act; they
and eighty. Non-hereditary peerageshad been created under the prerogative,
but it was held in the nineteenth century that conferment of such a peerage
bestowed no right to sit in the Lords; such a right could only be given by
10
statute. It was thought that a number of persons with radical sympathies

who were prominent in public life would be willing to accept life peerages
but not hereditary peerages; the Life Peerages Act was passed mainly in
the hope of strengthening and broadening the composition of the House
of Lords. A number of the baronies conferred under the 1958 Act have
been created after consultation between the Prime Minister and the
leaders of the opposition parties.

5. Lords of Appeal in Ordinary, appointed for life under the Appellate

Jurisdiction Acts. They are appointed as judges but are not precluded
11
from taking part in general debate, and they are indeed still entitled to
sit in the House after they havefrom judicial office. The maximum
retired
number entitled to be paid as Lords of Appeal at any one time is now
eleven.

be seen that some members of the House of Lords (the Lords

It will

Spiritual) are not peers, and that not all peers (for example, peers of
Ireland) are entitled to sit. Alienage, infancy, bankruptcy and imprison-
ment for treason are also disqualifications for sitting. There is no provision
for expulsion of a peer by resolution of the House in its legislative capacity.
The potential membership of the House is over one thousand. Some
peers who have succeeded to hereditary peerages have never applied for
writs of summons; 12 other peers have been granted, or have been deemed
to obtain, leave of absence under a standing order designed to discourage
1

8. Any Scotsman on whom a peerage has been bestowed since the Act of Union
has been a peer of the United Kingdom.
9. Re Earl of Antrim's Petition [19671 1 A.C. 691. Before 1922, when the Irish Free
State was constituted, peers of Ireland elected twenty-eight representative peers for life.
The machinery for filling vacancies caused by death then lapsed.
10. Wensleydale Peerage Case (1856) 5 H.L.C. 958; see p. 299 below.
11. See generally Drewry and Morgan (1969) 22 Parliamentary Affairs 226; Louis
Blom-Cooper and Gavin Drewry, Final Appeal ch. 10. ,

12. The number in 1968 was eighty-one (Cmnd 3799 (1968), p. 5).
13. Erskinc May, op. cit., p. 219. In 1968, 192 members of the Lords had leave

ol absence. At the beginning ol each Parliament the Lord Chancellor sends a letter to

The House of Lords 289

habitual absentees (‘backwoodsmen’) from descending on Westminster
in strength to vote down a controversial reform measure emanating from
the Commons -
a practice which had become an embarrassment to the
more The average daily attendance is below three
cautious Conservatives.
hundred, 14 but the number can still rise sharply on an important occasion.
On 28 October 1971 the House voted 451 to 58 in favour of the principle
of entry into the Common Market.
A peerage may fall into abeyance or become extinct, but cannot be
alienated; nor could be renounced at common law. Mr Anthony
it

Wedgwood Benn’s persistent campaign to disclaim the Stansgate peerage

to which he had succeeded came to fruition in the Peerage Act 1963.
Under this Act a peer may disclaim for his own lifetime a hereditary
peerage to which he has succeeded, provided that he makes the disclaimer
within twelve months of succession or coming of age. If heis an M.P., or

a parliamentary candidate who is then elected to the Commons, he has

only a month in which to make up his mind. After disclaimer, he becomes
a commoner; he may subsequently be granted a life peerage but not a
hereditary peerage. One upon whom a peerage has been personally
conferred cannot disclaim it. Fourteen peers by inheritance had in fact
disclaimed their peerages by 1977; not surprisingly, Mr Wedgwood Benn
W'as the of the few. The Earl of Home soon disclaimed his peerages in
first

1963 and became an M.P. after having been appointed Prime Minister; 15
Viscount Hailsham (Mr Quintin Hogg) also rejoined Mr Wedgwood Benn
in the Commons but returned to the Lords as a life peer on being appointed
Lord Chancellor in 1970. The effect of the Act has not seriously affected
the balance between the two Houses, but it has belatedly removed a source
of injustice to reluctant peers.
Peers are not paid a salary for attendance, but they may claim travelling
expenses to and from their homes and also reimbursement of up to £13.50
daily for expenses incurred in attending.

each member asking if he wishes to apply for leave of absence; and at the beginning of
each session he puts the same question to members who have neither applied for leave
of absence nor attended, or who have been granted leave of absence for the previous
session. One who has obtained leave of absence for that Parliament or that session, or
who has not replied to the letter, is expected not to attend the House during the relevant
period unless he gives a month’s notice of his desire to attend, though he cannot
apparently be prevented from speaking or voting if he nevertheless presents him-
self.

14. In the 1967-8 sessionit was 230: Cmnd 3799 (1968), p. 4. In 1955 (before the

Life Peerages Act 1958) was only ninety-two. The attendance record of peers of first
it

creation was, not surprisingly, better than that of peers by inheritance.

15. He received a life peerage as Lord Home of the Hirsel on his retirement from
the Commons in 1974.

290 Parliament and Legislation

Functions and work of the House

The Lord Chancellor, sitting on the woolsack, presides in the House, 16

but he lacks the coercive disciplinary powers of the Speaker of the Com-
mons. Proceedings in the Lords sometimes resemble a game of cricket
without an umpire; probably no other legislative body maintains so high
a degree of gentle decorum. Another engaging eccentricity is that the
Lord Chancellor often leaves the impartial (and extremely comfortable)
cushion of the woolsack to speak for the Government. 17 When the House
is in committee the chair is taken by the Lord Chairman of Committees.

The House has a Gentleman Usher of the Black Rod to attend on the
Lord Chancellor and execute the orders of the House. The clerk of the
House is styled Clerk of the Parliaments; he prepares and presents bills
for the royal assent; he is removable only on an address by the Lords.
18
The White Paper of 1968 referred to seven functions of the House:
(i) its appellate role; (ii) forum for debate on matters
the provision of a
of public interest; (iii) the revision of Commons’ bills; (iv) the initiation
of less controversial public bills; (v) the consideration of subordinate
legislation (vi) scrutiny of the activities of the Executive; and (vii) scrutiny
;

of private legislation.
The judicial functions of the House (i) will be considered separately 19 ;

so will function (v). 20 Function (vi) is not performed adequately; a stronger,

reformed second chamber could do better. Reference has already been
made to function (vii). The second, third and fourth functions are of some
consequence.
Several factors impair the efficiency of the Lords. The House is aristo-

cratic and non-elective; its members do not represent any body of

constituents and are thought of as speaking for a small section of the
community. Moreover, as is well known, a peerage is often granted as a
reward to party loyalists or as a consolation for Ministers who, no longer
measuring up to their jobs, are ‘kicked upstairs’. The House has a per-
manent Conservative majority, more conservative on the whole than any
Conservative Government that is likely to emerge from the Commons.
Governments do not depend on the favour of the Lords for their con-
tinuance in office. The House has no power over money matters; it

cannot impose its will on the Commons in legislation but can be over-

16. That part of his salary which he receives as Speaker of the House of Lords is

not charged on the Consolidated Fund, though the salary of the SpeakeY of the House
of Commons is so charged. See Ministerial and other Salaries Act 1975, s. 1.
17. Another Minister is now Leader ol the House ol Lords.
18. Cmnd 3799, po. 2-3.
19. See pp. 798-300.
20. See p. 335.

The House of Lords 291

ridden by the Commons; it is vulnerable to a hostile Labour Government
because of lack of a firm basis of public support, and, conscious of this
fact, is very reluctant to exercise the suspensory powers over legislation
21
which it retains; the Government can brush aside opposition in the Lords
more readily than in the Commons, mainly because a high-handed attitude
on its part is less likely to have adverse electoral repercussions; 22 the
Government front bench in the Lords is seldom strong and much of the
excitement aroused by questions and debates in the Commons is therefore
lacking in the Lords.
On members and speeches is often high.
the other hand, the quality of
Those upon whom
peerages are conferred are usually persons of con-
siderable experience of politics, the public service or industry or who
have otherwise made their mark in public or intellectual life. They bring
to the House a wide range of expertise. They tend to be elderly, but there
is a leavening of young peers by succession. In recent years the House

has become markedly more liberal in its outlook towards matters of

social and penal reform; the effect of the Life Peerages Act has been
conspicuously beneficial. For example, the original initiative in relaxing
the law relating to homosexual conduct (the Sexual Offences Act 1967)
came from the Lords, not the Commons; a big majority in the Lords
against the abolition of capital punishment for murder in the early post-
war period was converted to an abolitionist majority in the mid-1960s. 23
The leisurely timetable of the Lords gives the backbencher more oppor-
tunities to speak than in the Commons; and debates on matters which
cut across party lines, raising controversial moral issues out of which
the Government is more likely to incur odium than attract credit by
adopting a positive position, can easily be arranged in the Lords. Again,
the political balance has become more evenly weighted save on highly
contentious party occasions. Thus, among those peers who in 1968 were
more„pr less regular attenders, ninety-five took the Labour whip, 125 the
24
Conservative whip, twenty the Liberal whip and fifty were crossbenchers;
nevertheless, the Labour Government was faced by a clear anti-Labour
majority which could at any time be swollen into an active obstructive

But see below, pp. 296-7.

21.
For a protest by a senior Labour peer against this attitude, see Lord Chorley,
22.
‘Bringing the legislative process into contempt* [1968] Public Law 52.
23i This can also be partly explained by reference to a change of attitude among
the bishops and to some extent among the Law Lords. See the debates on the bill
which became the Murder (Abolition of Death Penalty) Act 1965. In December 1969
a Government motion to give the measure permanent effect was passed on a free vote
by the Lords as well as the Commons. See also Janet Morgan, The House of Lords
and the Labour Government 1964-1970 (1975).
’

24. Cmnd 3799 (1968), p. 4.

292 Parliament and Legislation

force, and a new Conservative Government could reinforce its strength
in the Lords by political appointments.
The House of Lords as at present constituted is a useful legislative
chamber. As has been mentioned, many of the less controversial Govern-
ment bills are introduced there; the debates will often be well informed;
helpful amendments to law reform bills may be moved by Law Lords at
committee stage. A recent example of a major piece of legislation thus
introduced was the Courts Act 1971. The Government’s legislative output
is thereby enlarged and its efficiency improved. The utility of the Lords as a

forum for the consideration of private bills is well recognized. Not so

generally appreciated is its value as a chamber for the introduction of
private members’ bills which may be crowded out in the Commons ; in the
1970-71 session three such bills, all dealing with not particularly contro-
versial law reforms, became law. 25 A controversial backbench bill originat-
ing in the Lords is unlikely to pass into law that session, but by attracting

publicity it can lead to the implementation of a reform soon afterwards;

the Sexual Offences Act 1967 is an The function of the Lords
illustration.
in revising Commons’ bills is potentially more important, but is not very
satisfactory in practice, mainly because the Lords are apprehensive about
the consequences of using their delaying powers by insisting on amend-
ments to a Labour Government’s bills, and partly because of the amateurish
lack of organization within the House. The latter failing, coupled with
large-scale absenteeism, is also responsible for the failure of the House to
perform properly what could be its most important function, scrutiny of
central administration.
Occasionally the revising powers of the Lords are used with significant
effect.A mildly controversial Government bill to distribute a c *V:all sum
received from the Soviet Government by way of compensation for the
seizure of British-owned assets in Eastern Europe was introduced into the
Commons late in 1968; the sum was to be distributed to claimants by the
Foreign Compensation Commission, a statutory tribunal constituted in
1950. With the bill before the House, the House of Lords in its appellate
capacity held that a provisional determination made by the Commission
in 1963 was a nullity because the Commission had exceeded its juris-
26
diction. The Government thereupon tacked on to the bill at report stage
amendments designed unequivocally to exclude the supervisory juris-
diction of the courts in relation to purported determinations by the

25. Burton and Drewry (1972) 25 Parliamentary Affairs 123.

26. Anisminic Ltd v. Foreign Compensation Commission [1969] 2 A.C. 147; cf.
Foreign Compensation Act 1950, s. 4(4), purporting to exclude all judicial review
of the Commission’s determination; and see Tribunals and Inquiries Act 1958, s. 11(3)
(now replaced by Tribunals and Inquiries Act 1971, s. 14(3)) and pp. 557-8.

The House of Lords 293

Commission. The bill as amended was duly passed by the Commons. But
a body of informed legal opinion had been aroused. There were letters to
The Times and adverse comments by Law Lords and other peers at the
,

second reading debate on the bill in the Lords; a former Lord Chancellor
moved an amendment to provide for a limited right of appeal to the
Court of Appeal from the Commission’s determinations on jurisdictional
issues, and the amendment was carried against the Government; the
Government then abandoned its position, introduced alternative amend-
ments which were accepted, and the Foreign Compensation Act 1969
became law with a novel code for judicial review of the Commission’s
determinations. Certainly it was relevant that the matter was of no political
importance to the Government. But this episode shows the potential
value of a well-informed second chamber. It also illustrates, incidentally,
how a second chamber may be used by the Government to interpolate
into a bill its afterthoughts instead of having to introduce an amending
bill later.

This last point was illustrated still more aptly in 1972, when 610 Lords’
amendments were made to the controversial and complex Local Govern-
ment Bill after it had been passed by the Commons. The vast majority of
those amendments were introduced by the Government.

Disagreements between the two Houses

Till 1911 the Lords and the Commons had coordinate legislative authority
except inmoney matters. 27 By convention, and according to the privileges
claimed by the Commons, bills dealing wholly or mainly with taxation or
public expenditure had to be introduced in the Commons, and their
money clauses could not be amended by the Lords, though the Lords
retained at least a formal right to reject them. Nor could the Lords amend
the financial clauses of non-money Commons decided
bills, save where the
not to insist on but instead to waive their privilege of having exclusive
cognizance of such matters. This is broadly the constitutional position in
relation to financial matters today (though see p. 224), but superimposed is
the drastic rule introduced by the Parliament Act 1911.
In 1909 the House of Lords rejected the Finance Bill; they passed it in
1910 after the Liberal Government had been returned to office at a
General Election. Following the second General Election of 1910, at
which the Liberals retained power, the Lords were induced to pass the
Parliament Bill under the threat of being swamped by a massive influx of
28
new Liberal peers. The Parliament Act 1911 was amended by the Parlia-

27. See Erskine May, op. cit., ch. 31.

28. For a readable account of the crisis, see Roy Jenkins, Mr Balfour's Poodle.

294 Parliament and Legislation

ment Act 1949, but not so as to affect its provisions relating to money bills.

Money bills! For the purpose of section of the Parliament Act 1911, a
1

money bill is one which in the opinion of the Speaker contains provisions
exclusively relating to central government taxation, expenditure or loans.
If before a bill leaves the Commons the Speaker certifies it as a money

bill, then it may be presented for the royal assent notwithstanding that the
Lords have failed to pass it without amendment after it has been before
them for one month. The Speaker’s certificate is to be indorsed on the
29
bill; once given, it is conclusive for all purposes;
before giving it, he
must, if practicable, consult two members .of the chairmen’s panel. It
will be noted that the statutory definition of a money bill is narrow; not
every Finance Bill has been so certified. But the combination of strict
law and convention has deprived the Lords of all effective authority over
raising and spending money.

Other bills. Other public bills (including private members’ bills) passed
by the Commons may also be passed into law against the opposition of
the Lords. (The Commons may kill a Lords’ bill simply by not passing it.)
Under section 2 of the Parliament Act 1911, a bill could be presented for
the royal assent if (1) it had been passed by the Commons in three con-
secutive sessions (whether of the same Parliament or not) in the same
form or subject only to such amendments as were certified by the Speaker
as being necessary through the effluxion of time or to Lords
amendments
agreed to in the preceding session by the Commons; (2) the Lords had
failed to pass it in each of the three sessions; (3)
two years had elapsed
between the second reading of the bill in the Commons in the first session
and its third reading in the Commons in the third session; (4) the
bill had

Lords at least one month before the end of each

been sent ug to the
and the Speaker had certified that the requirements of the
session; (5)
Parliament Act had been complied with. By the Parliament
Act 1949 the
sessions was reduced from three to two and the
interval of
number of
from two years to one. Hence the suspensory veto of the Lords has
time
30
been reduced to one year and one month.
These provisions do not, however, apply to bills to prolong the maxi-
beyond five years, or to provisional order
mum duration of a Parliament
confirmation bills; nor do they apply to private bills.
31 Only by resorting

29. Though cf. pp. 48, 86.

bill nor amend it in a manner unacceptable to
the
30. If the Lords neither reject the
adjourn proceedings on the bill, the Speaker is likely to certify
Commons but merely
that the requirements of the Parliament
Acts have been complied with immediately
presented for the royal assent. See
before the end of the session so that the bill can be
Taylor, The House of Commons at Work (8th edn), pp. 158-9. In practice the
Eric
suspensory veto is unlikely to exceed a year.
31. ct. pp. 268-9.

The House of Lords 29b

to the unlikely, and probably self-defeating, expedient of requesting the
32
monarch to create a sufficient number of new peers for the purpose,
could a Government secure the passage of such a bill against the adamant
opposition of the Lords.
Only three Acts have been passed over the heads of the Lords under
the Parliament Act procedure: the Welsh Church Act 1914 (disestablishing
the Church of Wales); the Government of Ireland Act 1914 (providing
for home rule for Ireland; the outbreak of the First World War followed
at once, and this Act was never brought into operation; self-government
was introduced after the war, along with partition); and the Parliament
Act 1949. The 1949 Act was ostensibly designed to forestall prospective
Conservative opposition to a measure for the nationalization of the iron
and steel industry. A Parliament Bill was introduced late in 1947 and was
passed by the Commons; the second reading in the Lords was adjourned
while a conference of party leaders discussed schemes for the future
composition and powers of the Lords; the conference broke down on the
question of the period of delaying power over legislation; the Lords then
rejected the bill on second reading by a large majority, and after the bill
had again been passed and rejected in the next two sessions it was sub-
33
mitted for the royal assent. The Government nevertheless found it
expedient to accept a Lords’ amendment to the Iron and Steel Bill, post-
poning its operation; the Government lost office soon afterwards and that
measure 31 did not come fully into effect.
The House of Lords used its suspensory veto to the full over the Labour
Government’s .Trade Union and Labour Relations (Amendment) Bill
(which, among other things, legalized the ‘closed shop’ and provided for a
‘charter on freedom of the press’). The Bill passed the Commons
and was
sent to the Lords in February 1975, where amendments wholly unaccept-
able to the Government were added. The Government made it clear that
the Parliament Act procedure would be used if the Lords maintained their
it; Ministers made threats about reconsidering
the powers of
opposition to
the Secretary of State
the upper house once the measure had been enacted;
for Employment even alluded to the possibility
of the creation of enough

32. See pp. 105-6.

33 Professor Hood Phillips has argued ( Reform of the Constitution pp. 18-19,
,

91-2) that the Parliament Act of 1949 may be a nullity, because it was enacted by a
‘delegate’ with limited powers (i.e. the Queen and
Commo^under the Parliament Act
its own powers. But even if one accepts
1911 procedure) and a delegate cannot enlarge
the view (rejected at p. 87) that legislation
passed under the 1911 Act procedure is
subordinate, it is questionable whether the 1949 Act
was ultra vires
‘delegated’ and
according to the canons of statutory interpretation.
34. Iron and Steel Act 1949. The industry
was denationalized m
.
1953 and re-

1967. The governing statute is now the Iron and Steel Act 1975.
nationalized in

296 Parliament and Legislation

 35
peers to carry the Faced with the inevitability of the Bill reaching the
Bill.

statute book under the Parliament Acts, the House ultimately gave it a
second reading in February 1976 in a form acceptable to the Government
and it received the royal assent on 25 March 1976 in the usual way as an
Act agreed to by both Houses. But the opposition peers could claim that
they had ensured the maximum time for the Commons to reconsider the
measure in a proper exercise of the constitutional function enshrined in the
Parliament Acts.
Under the Government’s 1968 proposals for Lords’ reform, the period
of delay would have been reduced to sixty parliamentary days from the
date of disagreement between the two Houses. Provision would also have
been made for enabling the Commons to override by a simple resolution
the Lords’ disapproval of such delegated legislation as was subject to
parliamentary proceedings; 36 the Parliament Acts do not apply to sub-
ordinate legislation.
In practice full-scale collisions between the two Houses have been
infrequent. With one recent exception, the Lords have not rejected any
of the nationalization bills passed by the Commons under Labour
Governments; they have inserted many amendments, but most have been
withdrawn after the Commons have insisted on their unacceptability, or
a compromise has been reached after discussions between party leaders
in the two Houses; some Lords’ amendments to Government bills have
been accepted on their merits or for reasons of prudence. 37 But the
exception to this accommodation provides the boldest and most contro-
versial instance of the House of Lords holding up a major piece of Govern-
ment legislation. The Aircraft and Shipbuilding Industries Bill was
introduced in the 1975-6 session and passed the House of Commons. The
Lords, however, attached amendments which would have withdrawn the
ship-repairing industry from the Bill, and insisted on those amendments.
That session of Parliament ended and the Bill was lost. It was reintroduced in
the 1976-7 session to be enacted, if necessary, under the Parliament Acts. 38

35. 902 H.C. Deb. 242-4 (9 December 1975).

36. Cmnd 3799 (1968), pp. 21-23. See ch. 15.
37. In 1947-8 the Commons, on a free vote, inserted in the Criminal Justice Bill
a clause moved by a backbencher which would have abolished the death penalty;
the backwoodsmen emerged, and the Lords passed an amendment by a large majority
to delete the clause; the Government dropped the clause from the bill. It is unlikely
that the Parliament Act procedure would be invoked to secure the passage of any
private member’s bill.

38. The House of Lords had House of Commons (Re-

also effectively killed the
distribution ot Scats) Bill in 1969. The Government, unwilling either to accept the
Lords’ amendments or to resort to the Parliament Acts, decided to withdraw the Bill
see further pp. 236-8 and 335.

The House of Lords 297

 The suggestion that the Lords would carry greater weight in the legis-
lative process if they had longer delaying powers is uncon v:nc fig. 1 ? :v-
last analysisthe most important reason why a non-Con^ervative Govern-
ment has seldom run into serious trouble with the Lords as at present
constituted is a fear of the consequences of self-assertion which the Con-
servative leadership in the Lords rightly entertains. The Prime Minister
might, for example, obtain a dissolution of Parliament in an endeavour
to distract public attention from more embarrassing and relevant prob-
lems, and the Government might then contrive to win a sufficient measure
of support to be returned to power, pledged to end the Lords (under the
Parliament Acts procedure, if necessary) and perhaps even the hereditary
peerage itself.

Judicial duties of the Lords

The Lords have functions of a judicial nature incidental to their capacity

as a legislative body, though inasmuch as the House is a superior court
of record, their determinations may be reported in the law reports. Claims
39
to peerages and to a right to sit in the House by virtue of the grant of a
peerage are referred to the Committee of Privileges of the House; the
40
House traditionally adopts the Committee’s report. This procedure is also
adopted when allegations of breach of the privileges of the House are made.
Magna Carta had laid it down man was entitled to trial by
that a free
his peers. This principle survived in theHouse of Lords till 1948; a peer
(or his wife) charged with treason or felony was tried by the whole House
of Lords; this expensive anachronism was abolished by the Criminal
39.
Justice Act 1948 and peers are now tried in the ordinary courts.
41
The process of impeachment obsolete but has never been abolished.
is

If a personwere to be impeached today he would be tried by the whole

House of Lords, with the House of Commons as his accusers.
Another function of a judicial nature, harking back to the days when
the High Court of Parliament was a judicial as well as a legislative body,
was the enactment of a bill of attainder, not by the Lords alone but by the
Queen in Parliament. An act of attainder is a legislative judgment declar-
ing a person to have been guilty of treason or other high crimes. Over

‘
new peerage are decided by the
Disputes as to the validity of the creation of a
House of its own motion. Disputes as to who
anyone) is entitled to an old peerage
(if

are determinable by the Attorney-General on behalf of the Crown but are normally
referred, in practice, to the House.
40. The House of Lords’ Committee of Privileges in 1976 decided a disputed claim
to the Ampthill barony, and its report was accepted by the House: Ampthlll Peerage
Case [19763 2 W.L.R. 777.
41. See pp. 163, 222-3 and p. 304, note 6.

298 Parliament and Legislation

 -50 years have passed since this ugiy mtu.no* o, ««xner.
'-dhCiUfe’ was last e\jressec\ »« ttUu u Vv
,\ere no r
necessarily Lr ;
***es n . . ..ik,

*Ci c conimiueci. lvloderti c^iihij^ationai wiii t ^

», , „

the Legislature from enacting ex post facto penal laws, 42 and vhe
consti-
tution may also, either expressly43 or by implication, 44 invalidate
bills of
45
attainder.
The House of Lords is also a court of appeal, at the apex of the ordinary
hierarchy of courts in the United Kingdom. 46 In this capacity it exercises
the ancient jurisdiction of the High Court of Parliament. It ceased
to
exercise original jurisdiction in the seventeenth century. The exercise of
its appellate jurisdiction gave rise to some awkward problems; the quorum
of the House in its judicial as in its legislative capacity is three, and there
were not always three hereditary peers with judicial experience available
to sit; the judges of the common law courts could, however, be called into
47
offer advice
An attempt was made to strengthen the judicial element in the Lords
in the mid-nineteenth century by conferring a life peerage on a judge of
the Court of Exchequer, Sir James Parke; the Committee of Privileges
reported that a peer was unable to take his seat, 48 and Parke had to
life

be given a hereditary peerage. The idea of diluting the hereditary peerage

with lawyers and their progeny was unattractive to the Lords; and the
need for a second and not very distinguished appellate court was not
readily apparent to laymen or indeed the bar. Under the Judicature Act
of 1 873 the appellate jurisdiction of the Lords was to be abolished but after ;

the Conservatives had ousted the Liberals at the General Election of 1874
a determined and successful campaign to restore that jurisdiction was
mounted. 49 The Appellate Jurisdiction Act 1876 provided for the appoint-
42. For example, Constitution of India, art. 20(1).
43. For example. Constitution of the United States, art. 1, s. 9.
44. For example, where the constitution vests the judicial power exclusively in the
Judiciary. And before Ceylon became the Republic of Sri Lanka under a new consti-
tution in 1972, the power of the Ceylon Parliament to make laws for the peace, order,
and good government of Ceylon did not import a power to pass an Act for tne con-
demnation of a particular individual: Liyanage v. R. [1967] 1 A.C. 259; though cf.
Kariapper v. Wijesinha [1968] A.C. 717.
45. Express references to ‘bills of attainder* in modern constitutions are uncommon
because of the ambiguity of the phrase — an ambiguity emphasized by trends of inter-
pretation in the United States Supreme Court.
46. For a full study, see Louis Blom-Cooper and Gavin Drewry, Final Appeal 1972).
{
47. The last case in which such advice was sought was Allen v. Flood [1898] A.C. 1.
The advice given by the judges in that case was not accepted.
48. Wensleydalc Peerage Case (1856); note 10. Sir James Parke was a Baron of the
Exchequer, but not the holder of a title of baronage.
49. See Stevens (1964) 80 L.Q.R. 343.

The House of Lords 299

 men t of two (there may now be eleven) Lords of Appeal in Ordinary, life
peers who had held high judicial office for two years or were barristers of
fifteen years’ standing; they were given a statutory right
to sit in the
Lords. They retire at seventy-fiveappointed after 1959) but may still be
(if

asked by the Lord Chancellor to sit. By convention, at least

two must
be Scots lawyers. The Lord Chancellor, ex-Lords Chancellor and
other
peers who hold or have held high judicial office may also
make up the
necessary judicial quorum; in practice five Law Lords normally sit
to hear an appeal. Lay peers are not precluded by statute from sitting
uninvited with the Law Lords to hear
an appeal, but by convention they
abstain from doing so; the last time when such a
peer sat was in 1883 and
his participation in the proceedings (including his vote on the appeal)
was
simply ignored
In its capacity as a court of appeal the House sits as an appellate
com-
mittee; adjourns to the chamber of the House for the formal delivery
it
of
•
opinions, which have been handed out in writing shortly beforehand and
are not now read out by their Lordships. It may sit during a prorogation
or dissolution of Parliament.
The House and criminal appeals, with leave of itself or
entertains civil
the court below, from the Court of Appeal. It also hears appeals from
the Courts-Martial Appeal Court and in certain cases direct
from the
Divisional Court of the Queen’s Bench Division, and individual High
Court judges, under restrictive conditions. It exercises civil but not criminal
appellate jurisdiction in respect of the Scottish courts, and hears both civil
and criminal appeals from Northern Ireland.

Approaches to reform

The preamble to the Parliament Act 1911 recited the intention ‘to sub-
stitute for the House of Lords as it at present exists a second chamber
constituted on a popular instead of a hereditary basis In 1917 the . .

Bryce conference proposed 50 that three-quarters of the members of the

second chamber should be indirectly elected on a regional basis by the
House of Commons; this scheme, unpropitious in its timing and, like all
other schemes for reform of the Lords, inconveniently controversial, was
placed in a pigeon-hole, and there it remains. The inter-party conference
convened after the second Parliament Bill had been passed by the Com-
mons reached a substantial measure of agreement on an outline plan for
a reconstituted upper House; the principle of indirect election, and
inheritance as an automatic qualification for membership, were alike

50. Cd 9038 (1917).

300 Parliament and Legislation

rejected; it was accepted that the House ought to be complementary to
rather than a rival of the Commons, and that as far as possible matters
51
should be so contrived that no party had a permanent majority in it*

Nothing was done to implement these proposals. Subsequent reforms

have not undermined the hereditary principle, but the Life Peerages Act
1958 has led to an improvement of debate, an increase in the
in the quality

number of regular attenders and a modification in the political com-

5
plexion of the more conscientious body of participants; and standing
orders providing for leave of absence have also helped. But a vote
strictly

along party lines on a matter attracting a large attendance will almost

53
invariably give the Conservatives a majority.
Discussions about the reform of the Lords have cut across party divisions
without bringing about the impetus or sense of urgency needed to carry
a
scheme through the Commons. Agreement in principle amongst the

sophisticated tends to be less than whole-hearted and to beget new

dis-

agreements when principle is translated into detail. Real enthusiasm

for Lords’ reform is too often to be found among the eccentric
and the
naive, who may have little idea of the mediocre performance of second
chambers in so many other countries or of the limited expectations that
can reasonably be reposed a reconstituted British second chamber.
in

Party political considerations also inhibit a determined approach

to

reform. Conservatives would, on the whole, like to see a less

unrepre-

sentative upper House brought into existence, but

preferably by agree-

ment and under a Labour Government; for a stronger upper House would
the detriment
be readier to exercise its authority, and if this were used to
delaying bills) the Conservatives
of a Labour Government (for example, by
to the
would not have to incur the unpopularity that would be attached
to favour
reformed House’s progenitor. Radicals have tended either
abolition ot the Lords or to let sleeping dogs lie;
an unrepresentative
second chamber is now unlikely to do more than growl, and occasionally
bark, at a Government of the Left, whereas a
renovated and more self-
assured body might bite hard.
schetne of 1968 was an
In this context the Government’s abortive
set of problems. Briefly, it
imaginative effort to grapple with an elusive
composition (though with reduced
envisaged a House stronger in its

51. Cmd 7380 (1948). . .

fM|t
the advice ol Mr
.

52. This was also influenced, of course, by life peerages granted on

1964-70 and 1974 to the time ot writing.
Wilson and Mr Callaghan during
whip, 350 the
53. In the 1967-8 session. 15 members of the Lords took the Labour
1

170 were ‘crossbenchers (in-

Conservative whip, forty the Liberal whip and about
fairly regular attenders, the Conservative
peers were the largest
dependents). Among
single group but were not in an ovoiall majority i sec p. 292.

54. Cmnd 3799.

The House of Lords 301

delaying powers), so constituted that no party would have a permanent
overall majority; but the Government of the day would have a 10 per cent
majority over the combined opposition parties, with crossbench peers
(including the Law Lords) and bishops holding the balance. The House
would, in effect, - those members with voting rights and
have two tiers

those who would sit and speak but not vote. The voting
be entitled to
House would have 200 to 250 members apart from bishops and serving
Law Lords; the members would be those hereditary peers of first creation
and life peers who were prepared to attend regularly; about eighty new
Labour life peers would have had to be created if the bill had become
law in 1969, in order to bring the Government side up to strength. There
would be a retiring age for voting members and they would be paid a
salary. Non-voting members would be those peers of first creation who
were unable or unwilling to meet the attendance requirements, and all
existing peers by inheritance; subsequently, however, -inheritance of a
peerage would no longer of itself qualify for membership of the House
at all.

Objections could be and were raised to the amount of discretionary

patronage to be vested in the Prime Minister and indirectly in the Oppo-
sition party leaders, both at the inauguration of the scheme and upon a
change of Government (inasmuch as new voting members of the House
would then have to be nominated to correct the party balance), and to
the measure of importance attached to the role of the crossbenchers. But
these problems were not insurmountable and the scheme was the best yet
to have been devised. If it could have found its way through the Commons,
its passage facilitated by a slice of the guillotine, one could have expected

a less timid and more professional second chamber to emerge, better

equipped for the introduction of controversial bills, for committee debate
on bills in general, and for the scrutiny of executive action by new select
committees or possibly joint select committees with the Commons. 55
For the first time this century (and perhaps the last) the debate on the
role of a second chamber was elevated from tedious and unrealistic
irrelevancy to the status of propositions to be weighed seriously. The
enactment of the Government’s devolution proposals would not cause re-
consideration of a new type of second chamber at Westminster. But such a
reconsideration would be inevitable if more radical proposals ever came to
fruition, for the most obvious basis of representation in a second chamber
is a blend of the political and the regional. To reconcile the constitution of

such a body with the necessity of averting recurrent and abrasive conflict
with the House of Commons will be a task demanding subtle ingenuity.

55. ibid.. Appendix Z

302 Parliament and Legislation

 Chapter 14
Parliamentary Privilege

General

Parliamentary privilege 1 is part of the law and custom ofParliament.lt

consists of special rules evolved by the two Houses in order to protect them-
selves collectively, and their members acting in their public capacities
against outside interference, so as to enable them to carry out their con-
stitutional functions effectively. Most of these special rules are non-
statutory; they have been laid down by resolutions of the two Houses or
by Speakers’ rulings. Some are statutory. They are part of the common law
in so far as their existence and validity are recognized by the courts,
but
they are, in general, enforced not by the courts but by each House. The
two
Houses justify the special rights, powers and immunities conferred
by
parliamentary privilege as being necessary for the welfare of the nation.
Citizens denied legal redress against M.P.s, or adjudged hv the House of
Commons have committed a high contempt and a breach of its privi-
to
leges, tend to beless impressed by these claims. The connotation of the
word ‘privilege’, is, moreover, unattractive. A select committee of the
House of Commons, appointed to review the law of parliamentary privi-
lege, recommended in 1967 that the expression ‘parliamentary privilege*
should be sent to the lumber room, and that the House should instead
speak of its ‘rights and immunities’; 2 but the committee’s recommenda-
tions for the relinquishment of particular rights and immunities were
extremely cautious.
The privileges of the Lords closely resemble those of the Commons, 3
and will not be considered separately.

1. For an authoritative study, see Erskine May’S Parliamentary Practice (19th edn),
chs. 5-11. For a modern critique, see Report Jrom the Select Committee on Parliamen-
tary Privilege, H.C. 34 (1967-68).
2. H.C. 34 (1967-68), vii-viii, xlix.

3. See O. Hood Phillips, Constitutional and Administrative Law (5th edn), pp. 212-13.

For the powers ot the Loids to punish lor contempt, see p. 314,

Parliamentary Privilege 303

Privileges of the Commons
At the commencement of a Parliament the newly elected Speaker claims
from the Crown ‘all the ancient and undoubted privileges’ of the House,
and in particular freedom of speech in debate, freedom from arrest and
freedom of access to the monarch through the Speaker; and he requests
that a favourable construction be placed on the Commons’ proceedings.
4

The most important privileges not specifically claimed are the right of
the House to regulate its own composition, its right to have exclusive
cognizance of matters arising within its precincts, the right to punish for
contempt and breach of privilege, its privileges in relation to the Lords in
5
financial matters, and its claim to be the sole judge of the extent of its
6
own privileges. The difference between the privileges expressly claimed
and those not expressly claimed is one of form, not of substance.

Freedom of speech
This is the most crucial and controversial parliamentary privilege. Article
9 of the Bill of Rights provided
That the freedom of speech, and debates or proceedings in Parliament ought .not
to be impeached or questioned in any court or place out of Parliament.

This is the basis of the modern law. Its interpretation and implications are
of primary importance.

1. No action or prosecution can be brought against a member for any

words used of parliamentary proceedings. This rule is ab-
in the course
solute. Thus, a member cannot be prosecuted or threatened with pros-
7 8
ecution for sedition or_a breach of the Official Secrets Acts for such
words; a prosecution or threat to prosecute would probably be treated
9
by the House as a breach of its own privileges. If a member were to be

4. These last two privileges (or claims) relate back to the days when the attitude of
the monarch towards petitions by the Commons and its spokesman was apt to be

tempestuous.
5. See ch. 13.

6. Among the less important privileges are immunity from attendance in court as
jurors or (with certain exceptions) as witnesses; and the right of impeachment. The
Select Committee (note 1 above) recommended that the right ot impeachment be
abolished by statute.
7. Eliot's case 3 St. Tr. 294.
Case of Duncan Sandys (1938). See Wilson, Cases and Materials , 2nd edn, pp.
8.

450-55 H.C. 101 (1933-39). Sandys had complained that he had been threatened with
;

prosecution for refusing to divulge his sources of information in connection with a

parliamentary question he had put down about a shortage of anti-aircraft equipment.
9. This is to be inferred from the report of the Select Committee on the Sandys

case and its adoption by the House. Members can be prosecuted for these offences
in respect ol disclosures or utterances which are not part ol proceedings in Parliament.

304 Parliament and Legislation

sued for libel or slander in respect of words used in Parliament (other
than in casual conversation not connected with parliamentary business)
the writ should be struck out as disclosing no cause of action; if the case
were to come to trial the court would hold that the member was protected
by absolute privilege in the law of defamation 10 - i.e. that no action v*ru!d
lie against him even if his remarks were shown to be defamatory, untrue

and unfair. The defence of absolute privilege (which has no necessary

connection with parliamentary privilege) also extends to judges acting in
their official capacities; the risk that the immunity from suit may be
abused is considered less than the risk that the absence of absolute privi-
lege might deter M.P.s and judges from speaking bluntly, even harshly,
when it is their duty to do so.
2. Parliamentary privilege (and absolute privilege in the law of defamation)
also attaches to statements in official reports of the proceedings of the
two Houses and their committees, and to other papers published by order
of the House. This rule was laid down by the Parliamentary Papers Act
1840, passed in consequence of a judicial decision ( Stockdale v. Hansard
11
(1839) ) that parliamentary papers were protected not by parliamentary
privilege but only by qualified privilege in the law of defamation - i.e. that
untrue and libellous statements made in such documents were actionable
if shown to have been actuated by malice.

3. What is the meaning of ‘proceedings in Parliament’? Contributions

to debate and committee discussions, oral questions, answers to parlia-
mentary questions and voting are clearly within the definition; so are the
execution of the orders of the House and the tabling of parliamentary
questions. Acts done and words spoken within the precincts of Parliament
which have nothing whatsoever to do with parliamentary proceedings 12
are clearly not protected. In between lie many transactions and situations
that do not lend themselves easily to classification. 13 If a member tables a
question and a Minister invites him to discuss it with him, the corres-
pondence or conversations appear to be covered by parliamentary privi-
14
lege. It is arguable that unsolicited communications with a Minister are

also covered if they are immediately related to a question or motion

20 Ir.L.R. 600; Goffin v. Donnelly (1881) 6 Q.B.D. 307.

10. Dillon V. Balfour (1887)
9 A. &E. 1; seep. 317.
11. (1839)
12. See, for example, Rivlin v. Bilainkin [1953] 1 Q.B. 485 (member of the public
posting a defamatory letter within the House, not protected).
13. See, for example, Exp. H'ason (1869) L.R. 4 Q.B. 573 (no private prosecution for
alleged conspiracy to deceive the House of Lords by false statements in the House;
the matter lay within scope of parliamentary privilege). See also Att.-Gen. of Ceylon v.
Livera [1963] A.C. 103 at 120-22 for judicial comment on marginal situations.
14. Speaker’s Ruling, 591 H.C.Dcb, 809-813 (14 July 1958).

Parliamentary Privilege 305

already tabled or a matter currently being debated in the House. If the
issue has ceased to be before the House, such communications are prob-
ably no longer to be regarded as part of a proceeding in Parliament.
Communications with Ministers in respect of matters which may never
arise in the House will not normally be covered by parliamentary privi-
lege. Not every act done by a member in his capacity as a member is so
protected. 15 A
member’s letter to or interview with a Minister, raising an
issue of concern to an individual member of the public or a group of his
constituents or any other section of the community, may lead to the putting
down of a parliamentary question if no satisfactory informal answer is
forthcoming; the issue thus raised may be a substitute for a jormal parlia-
mentary question (which would be privileged); but where is the line to be
drawn between proceedings in Parliament and matters merely antecedent
to possible proceedings in Parliament?
The leading modern case is that of G. R. Strauss (1957-8). Mr Strauss,
Labour M.P. and formerly Minister of Supply, wrote to a Minister com-
plaining about certain activities of an area board of a nationalized indus-
try. The Minister disclaimed responsibility on the ground that the matter

was one of day-to-day administration, and passed the letter on to the

board. The board threatened to sue Mr Strauss for libel. Mr Strauss then
raised this threat in the House as a question of privilege. The question
was referred to the Committee of Privileges, winch reported 16 that in
writing his. letter Mr Strauss was engaged in a proceeding in Parliament,
and that the members of the board and their solicitors, by threatening
legal proceedings against him in respect of his allegations, were in breach
of parliamentary privilege. They recommended (somewhat inconsistently)
that the question whether Article 9 of the Bill of Rights, restating the
privilege of freedom of speech, had been impliedly repealed by an obscure
eighteenth-century statute should be referred to the Judicial Committee
of the Privy Council for an advisory opinion. The question was so referred;
the Judicial Committee advised that the Bill of Rights (whatever it might
mean) stood intact. 17 The House accepted this advice and then debated
the Report of the Committee of Privileges. On a free vote it rejected by
218 to 213 the Committee’s finding that in writing his letter Mr Strauss
18
had been engaged in a proceeding in Parliament.
This decision is not binding on the House when future cases arise. And
the Select Committee on Parliamentary Privilege in 1967 was ‘strongly of

15. See generally de Smith, ‘Parliamentary privilege and the Bill ol Rights’ (1958;
21 Mod. L. Rev. at 477-82.
16. H.C. 305 (1956-57).
17. Re Parliamentary Privilege Act 1770 [1958J A.C. 331.
18. 591 H.C.Deb. 207-346 (8 July 1958).

306 Parliament and Legislation

 the opinion’ that the decision of the House in the Strauss case should be
19
reversed by legislation. At present the probability is that a court would
hold a letter written by an M.P. to a Minister on a matter lying within the
20
Minister’s general area of responsibility to be protected only by qualified
privilege in the law of defamation, unless the letter was ancillary, or an
immediate preliminary, to proceedings within Parliament itself. Public
policy considerations can be canvassed on either side. Letters from mem-
bers of the public to M.P.s (and presumably from M.P.s to members of
21
the public) on matters of public concern enjoy only qualified privilege.22
So do fair and accurate newspaper reports of parliamentary proceedings. 23
A statutory extension of the scope of parliamentary privilege to ease the
minds of M.P.s potentially threatened with libel actions (and heavy bills
of costs) would be widely interpreted as a self-endowed licence to make
maliciously defamatory comments with impunity. 24 On the other hand,
in 1967 communications between M.P.s and the Parliamentary Com-
missioner for Administration were accorded absolute privilege by statute. 25
If the law is left as it stands (or appears to stand), anomalies will remain;
if the law is changed in the direction generally favoured at present by
M.P.s, there will be dissatisfaction among members of the public.
4. Matters arising in the course of parliamentary proceedings cannot be

challenged or relied on for the purpose of supporting legal proceedings

based on events that occurred outside Parliament; for example, if an M.P.
issued for libel in connection with his remarks in a television interview,
and he pleads qualified privilege or fair comment, the plaintiff is not

19. H.C. 34 (1967-68), xxvii. This view was supported by several members who
spoke in the debate on the Report: see 786 H.C. Deb. 825-913 (4 July 1969). The
Report had been published nineteen months before it was debated in the House. Its
main recommendations have not been implemented.
20. e.g. a letter by an M.P. to the Lord Chancellor complaining of solicitors’ con-
duct. even though the Lord Chancellor has no direct disciplinary authority over them:
Beach v. Freeson [1972] 1 Q.B. 14.
21. Unless the M.P. is communicating to a complainant a report from the Parlia-
mentary Commissioner for Administration (Parliamentary Commissioner Act 1967
s. 10(5)); in which case he will emoy absolute privilege.

22. R. v. Rule [1937] 2 K.B. 375 (complaint by constituent to M.P. about public
officers); see also Beach v. Freeson (above; complaint by M.P. to Lord Chancellor and
Law Society).
23. Wason v. Walter (1868) L.R. 4 Q.B. 73.
24. It would seem that in an action for defamation, an M.P. who passes on a letter
from a member ot the public will not lose his qualified privilege by becoming auto-
matically infected with the malice of his informant: Meek uis v. Henson [1 964| 1 Q.B,
472; %irv. Chelmsford 19651 Q.B. 248.
1 I

25. Parliamentary Commissioner Act 1967, s. 10(5).

Parliamentary Privilege 307

allowed to use the defendant’s comments in the House to show that the
was actuated by malice. 26
latter

5. A member of the Commons who abuses his privilege of freedom of

speech may be subjected to disciplinary sanctions by the House; 27 it is
only outside Parliament that his parliamentary freedom of speech cannot
be impeached.
6. The House still reserves to itself the right to treat the institution of
legal proceedings against a member in respect of a matter covered, in its
opinion, by parliamentary privilege, as a breach of its own privileges;
but the Select Committee on Parliamentary Privilegerecommended in
1967 that save in exceptional circumstances (for example, where a member
is being improperly obstructed in the performance of his parliamentary
functions) such matters should be left to the ordinary processes of the
28
courts:

7. Substantial interference with the exercise of amember’s freedom of

speech' and action in his parliamentary capacity, by threats, molestation,
bribes or other improper inducements may be treated by the House as a
contempt or breach of privilege. What if a member agrees to act as the
parliamentary spokesman of an outside pressure group? The inconclusive
case of W. J. Brown (1947) 29 neatly stated the problems. Brown, who had
been general secretary of the Civil Service Clerical Association, was
elected as an Independent M.P. He entered into an agreement with the
Association whereby he became their salaried ‘parliamentary general
secretary’ but would retain full freedom to engage in his own political
activities. The executive committee of the Association later became dis-

satisfied with his political attitudes and proposed to recommend the

termination of the agreement. Brown claimed that this proposal was a
breach of parliamentary privilege in that it was calculated to influence
him in his conduct as an M.P. by threatening him with a financial penalty.
The Committee of Privileges, dividing (unusually) along party lines,
30
reported that on the facts no breach of privilege had been committed,
but it recognized that the exertion of outside financial pressure on a
member for the purpose of influencing his conduct as a member could well
be a breach of privilege. The House, adopting the report, resolved that it

26. Church of Scientology of California v. Johnson-Smith [1 972j 1 Q.B. 522. See also
Dingle v. Associated Newspapers Ltd [1960] 2 Q.B. 405 (action for libel against news-
paper; plaintiff not entitled to contend that proceedings of select committee of House,
on which offending comments were based, were void for procedural irregularity).
27. H.C. 34 (1967-68), xxii, xxiii.
28. H.C. 34 (1967-68), xvi-xvii. See generally de Smith, 21 Mod.L.Rev . 465,
29. H.C. 118 (1946-47).
30. H.C. 118 (1946-47).

308 Parliament and Legislation

was inconsistent with the maintenance of the privilege of freedom of
speech for a member to enter into a contractual agreement with an outside
body fettering his freedom of action or stipulating that he was to act as that
body’s parliamentary representative. 31 In any event a court would almost
certainly refuse to enforce such a contract on grojunds of public policy. 32
A clearer case arose in June 1975. The Yorkshire Area Council of the
National Union of Mineworkers resolved to restrict the parliamentary
conduct ot M.P.s sponsored by the Area branch, in particular by requiring
that such M.P.s should not vote on any issue contrary to union policy on
the industry. The threat of withdrawal of sponsorship for recalcitrant
M.P.s was suggested. The Committee of Privileges found that there had
been a serious breach of privilege - but the National Executive of the
NUM passed a motion to nullify the Yorkshire Area Council’s resolution,
so no further action was needed. It is impossible to believe that financial
aid tendered to members by sectional interest groups has always been
granted on the understanding that the member is under no kind of obliga-
tion whatsoever to promote the interests of that group. The Select Com-
mittee on Parliamentary Privilege accepted as a fact the existence of such
relationships and pointed out that a member speaking on a topic in which
he had a financial interest might be guilty of a contempt of the House if
he failed to disclose his interest. The Select Committee on Members’
33
Interests, reporting in 1969, expressed itself still more guardedly, empha-
sizing the distinctionbetween improper inducements held out to or
accepted by members for the promotion of specific matters in their parlia-
mentary capacities, and regular financial assistance offered to members by
outside organizations; the latter type of relationship was regarded (subject
to the formal qualification interposed by the resolution of the House in
Brown's case) as being quite proper.
Threats of disciplinary action against members by party whips have
been ruled not to constitute infringements of the privilege of freedom of
speech because they are part of the conventionally established machinery
of political organization within the House. Nevertheless, pressure exerted
on a member by the whips may influence his conduct far more significantly
than any connection he may have with an outside interest group.
8. In order to protect its freedom of speech, the House asserts ancillary
privileges. It may resolve to clear the visitors’ gallery by excluding stran-
gers; in wartime it has often gone into secret session. Leave of the House

31. The duty of a member being to his constituents and to the country as a whole,
rather than to any particular section thereof (440 H.C. Deb. 365 (15 July 1947)).
32. See Amalgamated Society oj Railway Servants v. Osborne [1910] A.C. 87 at
110-15 for the rationale of such a judicial attitude.
33. H.C. 57 (1969-70), viii-x. See also p. 264, note 29.

Parliamentary Privilege 309

must generally be obtained for evidence to be given in court of anything
that occurred in the course of parliamentary proceedings. The House
used to treat publication of its debates as a breach of privilege; assertion
of this privilege has been discontinued.

Freedom from arrest

This immunity has lost most of its early importance, and in 1967 the
Committee on Parliamentary Privilege recommended its abolition. 34 It
does not protect members from arrest on criminal charges, or from
35
preventive detention as security suspects in wartime; though their arrest
or detention must not be based on anything they have said in the course
of parliamentary proceedings. The privilege 36 protects members from
arrest in civil matters for wilful disobedience to a court order - for example,
refusal to comply with the terms of a maintenance order. 37 It extends for
the period of a session and forty days before and after. Imprisonment of
defendants in civil proceedings, and in particular of debtors who were
unavoidably prevented from discharging their obligations, was a common-
place matter till the latter part of the nineteenth century; nowadays arrest
in civil cases is confined to a narrow range of situations where the defendant
is as a rule seriously at fault.

Right of the House of Commons to provide for its own composition

This privilege is now partly regulated by statute. For example, the trial

of disputed election returns has been committed to an election court; the

question whether a member is subject to a legal disqualification may be
determinable by an election court or the Judicial Committee of the Privy
Council. Within its narrowed field, the privilege is nevertheless important.

34. H.C. 34 (1967-68), xxix.

35. Ramsay's case (1940).
36. In the eighteenth century the privilege, accompanied by the now obsolete
privilege against being impleaded, had come to be invoked to protect not only members
but their servants from arrest and suit, and was frequently abused to enable members
to escape from their contractual obligations and to have their creditors arraigned for
contempt of the House. The privilege against being impleaded was abrogated m 1770.
cf. Re Parliamentary Privilege Act 1770 [1958 A.C. 331
' de Smith, loc. cit., pp. 475-6.
;

37. Stourton v. Stourton [1963) P. 302 (where privilege from arrest was successfully
claimed by a peer). Members are privileged from arrest for civil but not criminal con-
tempt ol court: Erskine May, Parliamentary Practice (19th edn), pp. 107-9; Wellesley
v. Eart oj Beaufort (1831) 2 Russ. & M. 639. There are difficult marginal cases (see
Enid Campbell Parliamentary Privilege in Australia 59-63; Sawer (1971) 7 U of
,

Queensland LJ. 226), but broadly it seems that members are immune from detention
imposed by a court if the purpose of the detention is coercive as distinct from punitive.

310 Parliament and Legislation

The House has the exclusive right, while it is sitting, to determine by
when a writ for the holding of a by-election shall be issued. It
resolution
can declare a member’s seat vacant on the ground that he has incurred a
legal disqualification or for any other reason it thinks fit and the courts
cannot interfere; this is why it would be lawful for the Government to
use its majority in the House to expel all Opposition members. 38 Self-
restraint, influenced by fair-mindedness and expediency, alone prevents
abuse of its privilege. The inexpediency of abuse was illustrated by the case
of John Wilkes, the rake, wit and radical demagogue, who was elected to
the House of Commons; the corrupt House decided that he was unfit
to share their company, and expelled him. But the House has no privilege
to prevent any person from standing as a candidate at a by-election.
Wilkes was duly re-elected, and his seat was again declared vacant by the
House; after this absurd process had been repeated, the House resolved
in 1770 that his election was void and that the seat be awarded to the
runner-up. Wilkes was again elected in 1774; the House took no step to
unseat him, and in 1782 the House resolved to expunge the resolution of
1770 from its Journals.
The only modern examples of expulsion for reasons other than legal
members who had been convicted of criminal
disqualification are of
offences involving moral turpitude or who have committed gross contempts
of the House. 39

Right to have exclusive cognizance of matters arising within the House

This right is closely linked with the rule that proceedings in Parliament
cannot be called in question in any court. The leading case is Bradlaugh
40
v. Gossett (1884). Bradlaugh, a militant atheist, was elected to the House.
After some vacillation, the House decided to allow him to make an
affirmation of allegiance in lieu of taking an oath. A common informer
then sued Bradlaugh for penalties on the ground that he was not qualified
to sit and vote because he did not come within the classes of persons
permitted by statute to affirm instead of taking an oath; and the courts

38. Under a written constitution, the grounds for expulsion could be judicially
reviewable. Powell v. McCormack 395 U.S. 486 (1970) (the case of Adam Clayton
cf.

Powell, the former Congressman for Harlem).

39. In 1947 Garry Allighan M.P. was expelled for contempt. He had made un-
substantiated allegations that M.P.s had given particulars of parliamentary party
meetings, held within the precincts of the Palace of Westminster, to journalists for
money or while under the influence of drink. He was himself receiving payments from
a newspaper for disclosing such information and had given false answers to questions

put to him in the Committee of Privileges.

40. 12 Q.B.D. 271.

Parliamentary Privilege 311

 .

held that Bradlaugh was not entitled to affirm. 41 Bradiaugh’s seat became
vacant; he was re-elected, and then sought to take the oath rather than be
excluded from sitting. The House refused to allow him to do so, although
on a proper construction of the Parliamentary Oaths Act 1866 he appeared
entitled to take theoath if he chose, despite his position as a non-believer.
Subsequently it resolved to exclude him from the House until he under-
took not to disturb its proceedings. Bradlaugh brought an action, claiming
a declaration that the resolution was void, and an injunction to restrain
the Serjeant-at-Arms (Gossett) from excluding him. The court held that
it had no jurisdiction to interfere. Assuming that the House had mis-

interpreted the Act, the matter would still fall within the exclusive privilege
of the House to regulate its own proceedings. Similarly, if the House had
resolved to allow Bradlaugh to take the oath, the courts would have had
no power to pronounce upon that decision. But if proceedings were
brought to recover a penalty from him as a disqualified person, it would be
incumbent on the court to interpret the Act. In such a case the jurisdiction
of the courts could not be excluded even by a resolution of the House
purporting to protect Bradlaugh against an action for penalties, for the
privileges of Parliament did not extend to such a matter arising outside
42
the House.
The House has not asserted a general jurisdiction over matters arising
within the walls of the House if they have no direct connection with its
proceedings. Theft, rape or murder are issues to be leftjto the criminal
courts; in any event, the penal powers of the House are inadequate to
43 House,
deal witli ordinary crimes. If two members came to blows in the

the courts and the House would have a concurrent jurisdiction; a magistrate
44
could properly issue a summons for assault and try the case, and the
. House might also decide that the fracas amounted to a contempt of the
House. But when in doubt, a court may elect to tread warily for "fear of
encroaching on what the House may deem to be its own exclusive
pre-

serves. When A. P. Herbert, then an Independent M.P. campaigning to

liberalize the liquor licensing laws, decided to embarrass members of the

later held, however, that only

41. Clarke v. Bradlaugh (1881) 7 Q.B.D. 38. It was
the Crown could recover the penalties prescribed by statute: Bradlaugh v. Clarke (1883)
8 App. Cas. 354. ,_ r io^»

42. (1884) 12 Q.B.D. at 281-2, per Stephen J.

See also Papworth v. Coventry [1967J
1 W.L.R. 663 at 669-70. .. .

the chamber by a member oi the

43 See p 314 In 1970, CS gas was projected into
protest. The House left the matter to be
dealt with by the police
public as a gesture oi
and the courts. „ ,*• * t

where the conviction for sedition was ultimately

44. In Eliot's case (note 7 above)
for assaulting the Speaker in
quashed on a writ of error, the defendants’ conviction
Bradlaugh v. Gossett (above; at 2tU-4.
the House still stood. See also

312 Parliament and Legislation

 Kitchen Committee of the House by applying for summonses against
them for selling drinks in the members’ bar without a justices’ licence, the
chief metropolitan magistrate refused to issue summonses; and the
Divisional Court of the King’s Bench Division, taking a remarkably
generous view of the scope of the internal affairs of the House of Com-
mons, held that he had been right to decline jurisdiction because of
parliamentary privilege. 45

Right to punish for breach ofprivilege and contempt

The House can vindicate its own privileges by taking disciplinary action
against members and others whom it adjudges to have broken them* Ail
breaches of privilege are contempts of the House. But there is also a wide
range of contempts that do not fall within the scope of any nominate
46
privilege. The following are examples of contempts: offering bribes to
members; molesting or otherwise obstructing members or officers of the
House in the performance of their duties; casting imputations reflecting
on the dignity of the House by, for example, insulting the House or its
members; attempting to disrupt the proceedings of the House; tampering
with witnesses before select committees of the House; refusing to give
evidence, or giving false evidence, before a committee of the House. These
contempts are often called breaches of privilege; this usage is mislead.*..^,
for the House has accepted that it cannot by resolution enlarge the scope
of its own privileges, but has not closed the categories of contempt; and -
to take but one example - if revolutionary students shouted down wit-
nesses giving evidence at a university before an itinerant select committee,
they would be guilty of a contempt of the House. No matter whether the
offence is styled a breach of privilege or a contempt or both, the penal
powers of the House are the same.
A complaint of ‘breach of privilege’ must be raised by a member at the
47
earliest opportunity. If the Speaker rules that a prima facie case has been
made out, the matter is referred to the Committee of Privileges, a select
committee which since the 1974-5 session has been appointed for the dura-
tion of a Parliament, and which has always been nominated in proportion
to party strengths. In investigating the complaint, the Committee can re-
quire the attendance of witnesses and the production of documents;
refusal to comply with its commands or to answer questions is a contempt.
It does not, in practice, afford the persons against whom the complaints

45. R. v. Graham-CampbelL exp Herbert [19351 1 K.B. 594.

.

46. See Erskinc May, Parliamentary Practice (19th edn), ch. 10.
47. But the Speaker may decide not to pursue it if an immediate, unqualified apology

is made to him: see, lor example, 902 11. C. Deb, 1392-3 (17 December 1975). .

Parliamentary Privilege 313

 have been made any opportunity of being legally represented, and has
sometimes reported that a complaint has been established although the
‘defendant’ has not been given any hearing at all. In the Strauss case 48 the
Committee condemned the members of the area board without hearing
them. Since, moreover, the members of the Committee are in a sense
judges in their own cause, this disregard of the elements of natural justice
is open to severe criticism. In 1967 the Select Committee on Parliamentary
Privilege recommended a number of procedural reforms, which would give
all persons directly concerned a right to attend its hearings, make sub-

missions, and call, examine and cross-examine witnesses and rights to seek
;

the Committee’s leave to be legally represented and to ask for legal aid. 49
These necessary reforms had yet to be brought into effect at the time of
writing. There is also a case (which the Select Committee did not accept)
for codifying contempts so as to introduce certainty at the expense of
flexibility. In some Commonwealth countries, not only are breaches of
privilege and contempts codified by statute but allegations of breach of
privilege and contempt are triable by the courts.
The Committee of Privileges may find that a complaint has been estab-
lished but recommend that no further action be taken. It may recommend
that the House resolve that the person guilty of contempt be admonished
or reprimanded by the Speaker at the bar of the House; or that a member
found guilty of contempt be suspended 50 or expelled from the House; or
that a member, or a member of the public, be committed to prison for
contempt. The recommendations of the Committee are nearly always,
but not invariably, adopted by the House. The power of the House to
impose fines for contempt was last exercised three hundred years ago and
is now obsolete; the Select Committee in 1967 recommended that this

power be revived by statute. No person has been committed to prison for

contempt since 1880 (and then only for one night). Imprisonment ter-
minates on prorogation though it can be renewed in the next session. The
House of Lords, as a court of record, may impose fines and may commit
for a fixed term extending beyond prorogation. Offenders may be taken
into the custody of the Serjeant at Arms (or Black Rod) and thence com-
mitted to prison if the House has so directed. Provided that the order of

48. See p. 306.

49. H.C. 34 (1967-68), xiv-xlvii.
50. The Speaker may also order a member to withdraw from a day’s sitting for
grossly disorderly conduct (S.O. No. 23); and he names a member for persistent
if
disregard of the authority of the chair or other serious misconduct in the House, that
member may be suspended forthwith upon a resolution of the House, the period
of suspension for a first offender being five days (S.O. No. 24). These provisions
do not affect the general inherent power of the House to suspend a member for con-
tempt.

314 Parliament and Legislation

 the House or Speaker’s warrant is duly made out, the Serjeant at Arms
may forcibly enter private property to carry out an arrest, 51 and is entitled
to call upon the police or even the armed forces for any necessary assis-
tance in executing the orders of the House. 52
The Select Committee of 1967 confirmed what was already apparent -
that some members had been too ready to invokeahe jurisdiction of the
House to deal with personal affronts as questions of privilege. It recom-
mended that recourse to this jurisdiction should be confined to those
cases where the exercise of the functions of the House was liable to be
seriously impeded; that where members considered themselves to have
been defamed by newspaper comments or statements by individuals, they
should normally be content to pursue their remedies in the ordinary
courts; and that where proceedings were brought in the House for
contempt, justification or reasonable belief in the allegations complained
of should be admissible as defences.
Since 1967 the number
of trivial complaints of breach of privilege has
diminished. But incongruous, to say the least, that members of the
it is

House of Commons should be more sensitive than judges to hostile criti-

cism. 53 It is also noteworthy that whereas an appeal lies from a conviction
for contempt of court, no such appeal lies from a finding of contempt of
the House; this rule would be left unchanged by the Select Committee’s
proposals. Fortunately the House has on the whole dealt sensibly with
contemnors; where the Committee of Privileges has found a complaint
proved, it has usually recommended that no disciplinary action be taken
and the House has regularly accepted such a recommendation.

Parliamentary privilege and the courts

There are points of similarity between the royal prerogative and parlia-
mentary privilege. Both are recognized as part of the law of the land; both
embody special rules evolved for public purposes. Acts done within the
recognized area of prerogative are unreviewable by the courts; acts done
by either House within its acknowledged field of privilege are similarly
unreviewable. 54 The Crown cannot enlarge its own prerogatives within
the realm; the two Houses have recognized that they cannot extend their
privileges, though their attitude towards ‘contempts’ not falling within
51. Burden v. Abbot (1811) 14 East 1.
52. ibid. See further H.C. 34 (1967-08), pp. 1 15-65, 206-9 for details of the procedure
adopted.
53. For a modern (and tolerant) judicial attitude towards the concept of contempt
of court, see R, v. Metropolitan Police Commissioner ex p. Blackburn (No, 2) [19681
,

2Q.R. 150.
54. See B/adlaugh v. Gossett (1884) 12 Q.3.D. 271.

Parliamentary Privilege 315

the scope of a nominate privilege is ambiguous. But there are material
differences between prerogative and privilege. The prerogative is essentially
a residuum of ancient common-law attributes, attenuated by judicial
decisions and legislation. The growth of parliamentary privilege can be
traced in resolutions and rulings recorded in the Journals of the two
Houses; and privilege has been and can still be expanded, as well as
abrogated, by statute. The Crown cannot commit persons to prison for
infringing its prerogatives; the two Houses can commit for breach of
privilege, or enforce obedience to privilege by milder forms of direct
action. The most interesting difference between the 'two bodies of law is
that whereas the Crown has long since ceased to claim to be the sole
judge of the limits of its prerogative, the two Houses (and the House of
Commons in particular) still assert that they are the sole judges of the
extent of their own privileges - a claim to which the courts do not accede.
For example, a decision by the House of Commons that Mr Strauss’s
letter tothe Minister was a ‘proceeding in Parliament’ would not have
been treated as binding by the courts if the board had sued Mr Strauss;
55

the House, on the other hand, might have not only rejected the courts’

interpretation but also treated it as an encroachment on its own privileges,

and therefore a contempt, on the part of the plaintiffs, their legal advisers
and the judges.
The claim of the House to be the sole interpreter of its own privileges
has given rise to two major constitutional conflicts. In the first of them,
56
the House of Lords (as an appellate court) held CAshby v. White) that

a voter at Aylesbury, whose vote the returning officer had maliciously

refused to accept, was entitled to damages. The House of

Commons
to
protested that this decision violated their exclusive privileges relating
elections. Other Aylesbury voters brought similar actions
parliamentary
against the returning officer; the House ordered them to be
committed to
corpus to secure
prison. An application was made for writs of habeas
from unlawful detention. Iu Paty's case (1704) the court
their release
refused the writ;
57
counsel for the applicants, who intended to bring the

case before the House of Lords, was promptly committed by the Com-
his clients. The deadlock was broken only by a
prorogation
mons to join
of Parliament.

different in as much as the resolution

55 The situation in Bradlaugh v. Gossett was
well-founded, undoubtedly fell within the
of the House in that case, ill-founded or
its own internal affairs.
scope of the privilege of the House to regulate
Ld. Raym. 320; 14 St. Tr. 695.
56. See 2 Ld. JRaym. 938, 3
dissenting on the ground that the cause
57. Ld. Raym. 1105, Holt C.J. (rightly)
insufficient in law; the facts alleged
of commitment stated in the return to the writ was
contempt of the House had been explicitly averred.
toconstitute the

316 Parliament and Legislation

 The more spectacular form, at the b--gnJiina
central issue revived, in a
of Victoria’s reign. One Stockdale published an illustrated treatise on the
reproductive system.' The book was found circulating
among prison
inmates. Stockdale considered himself to have been
defamed by com-
published by
ments on his work made in a report by prison inspectors,
Hansards, the parliamentary
order of the House of Commons, and sued
printers (then a commercial firm) for libel. The
defendants were ordered
covered by parlia-
by the Commons to plead that the publication was
plea, holding
mentary privilege. The Court of Queen’s Bench rejected this
a publication was not comprised within the
that as a matter of law such
parliamentary privilege and awarded damages to Stockdale
area of
resolution of the House could deprive the
0Stockdale v. Hansard);* no
courts of their authority to interpret and apply the
law of the land in a
the rights of subjects. Stockdale brought another action
matter affecting
Hansards; the defendants, on the instructions of the
House,
against
enteredno plea, and the plaintiff was again awarded damages. There
59
were two sequels:
(i) Execution had been levied by the
Sheriff of Middlesex on Hansard’s
to commit the
property to recover the damages. The House resolved
Sheriff for breach of privilege and contempt.
He applied for habeas

he was being unlawfully detained ( Sheriff of

corpus on the ground that
Middlesex’s case (1840)).
60
The Speaker’s warrant was ‘general’, in that
it had not recited the facts
allegedly constituting the contempt. The court
dismissed the application, on the ground that it would be unseemly to
the House of Commons were not a superior
court
inquire further. Even if
as if it were; and on a habeas
of record, it was entitled to as much respect
application one superior court would not investigate the truth of
corpus
commitment for contempt. If,
the facts stated by another as a cause of
the alleged contempt had been set out by
however, the facts constituting
the respondent to the application,
and they could not reasonably be

58 (1839) 9 A, & E. 1.
solicitor for con-
one includes the commitments of Stockdale and
his
59. Four, if
10 Q.B. 359, 41 1).
tempt of the House (cf. Howard v. Gossett (1845)
Sheriffs of Middlesex were committed by
the
60. 11 A. & E. 273. In fact the two
H Mod 144; Murrgs
the Earl of Shaftesbury's case (1677)
1
°6l! The precedents were
Wtls. 299; and a considered dictum Burden v. Abbot (1811) 14 East
in
case (1751) 1

In Pat/ s case (above) a majority

of the court had held their jurisdiction to be
at 150.
the alleged “"temptjere
‘specified *n the 1 i

excluded even though the facts constituting

Middlesex's case was
return to the writ. The Sheriff of
Fitzpatrick and Browne ( 955) 92 C.L R. 15?
(held,
Australia in R. v. Richards , ex p.
in the Commonwealth of Australia
could commit for
also that a House of Parliament
Parliamentary Privilege in Australia, ch. 7.
a fixed term). See Enid Campbell,

Parliamentary Privilege 317

construed as amounting to a contempt of the House, the court would be at
liberty to intervene. 62
(ii) Parliament passed the Parliamentary Papers Act 1840, conferring

absolute privilege on statements in parliamentary papers, and thus achiev-

ing what could not be attained by a mere resolution.
The on the part of the courts to award habeas corpus to release
refusal
63
the Sheriff from arbitrary detention is obviously open to criticism. It was

supported by precedent and was defended on grounds of principle; but

the court had chosen to blind itself to notorious reality, and to countenance
64
injustice. Although ‘the old dualism remains unresolved’, in the sense

that the courts still do not accept the conclusiveness of the House’s pro-
nouncements as to the scope of its own privileges and the House denies
that the courts have jurisdiction to determine such a matter at all, it is
65
not unfair to say that the courts have ‘yielded the key of the fortress’ by
accepting that the House can enforce its own view by first committing an
innocent offender to prison and then refusing to give particulars of his
alleged breach of privilege. Fortunately the House of Commons has not
acted in such an overbearing manner since Stockdale’s time; it has, more-
over, acquiesced in the assumption of jurisdiction by the courts in several
marginal cases, and the courts have shown circumspection when called
upon to exercise jurisdiction.
Nevertheless, the House has, more than once, reiterated its own position
in recent years, a narrow margin was the prospect of a similar
and only by
66
conflict averted in 1958. Judges are not always better equipped than
other persons to decide questions of law set in political contexts. But
the unhappy combination of uncodified contempts, an unsatisfactory
procedure for investigating allegations of contempt, and the insistence of
the House that it must have the first and last word in matters touching
the interests of its members as members, irrespective of the impact of its

1
62.Adopting Holt C.J.’s view in Paty s case (above) and Lord Ellenborough’s
dictum in Burdett v. Abbot 14 East.at 150.
Ultimately the Sheriff of Middlesex declined to execute any further orders ol the
court against Hansards and was thereupon committed to prison for contempt of
court.
63. Contrast the decisions of the Supreme Court of India in Special Reference No. 1
of 1964 A.I.R. 1965 S.C. 746, where a general warrant ol commitment for breach of
privilege was held not to exclude the court’s jurisdiction to inquire into the legality
of the commitment. See Annual Survey oj Commonwealth Law for 1965 pp. 41-4. ,

64. Re Parliamentary Privilege Act 1770 [1958] A.C. 331 at 354 (quoting Erskine
May).
65. Keir and Lawson, Cases in Constitutional Law (5th edn), p. 267.
66. If the House had endorsed the report of the Committee of Privileges in the
Strauss case, it is not at all certain that this would have deterred the board Irom
proceeding with an action against Mr Strauss.

318 Parliament and Legislation

 decisions on the interests of members of the public, suggests that the House
ought to relinquish its jurisdiction over breaches of privilege and con-
tempts to the courts, as it has in eilect relinquished its privilege to determine
disputed election returns.

Parliamentary Privilege 319

I
Chapter15
Subordinate Legislation

General *

Parliament is not the sole source of new law. The superior courts make

new law by laying down rules in decided cases which form binding prece-
dents - binding till they are overruled (by statute or in a later case), or
distinguished, or otherwise explained away. Judicial law-making is almost
surreptitious; a new departure usually rationalized as a rediscovery of
is

a long-lost principle, or as an application of an established rule to a novel

set of material facts, or as the ascertainment of an unexpressed parlia-
mentary intent. Although the idea that the courts merely declare and
apply pre-existing norms may be a polite fiction, the supposed need for
is for
this verbal camouflage rests on a widely held assumption that it
Parliament, not for the Judiciary, to bring the law up to date. The room
for judicial manoeuvre is restricted by the framework of constitutional

thought within which the courts operate.

As we have already noted, such Community legislation as has direct
1

effect in Britain is really primary not subordinate , legislation, because

,

in the eyes of
the Community organs are not subordinate to Parliament
Community law and their legislative output does not derive its legal force

from any delegation of authority by Parliament. Community legislation

regulations
isindeed normally ‘secondary’ in the sense that it consists of
pursuance of powers conferred
made by the Council or the Commission in
and therefore subordinate within the
by the Community treaties, it is

Community legal order but not within our legal order.

,

the executive
There are other legislative institutions, forming part of
some departments of
branch of government. The Crown, Ministers,
and local authorities have law-making powers.
public corporations
JState,

When we speak of subordinate legislation, we mean primarily the rules

and regulations made by these executive bodies. We

also include rules of
statutory committees composed mainly of
court made by independent
subordinate in that it is made by bodies endowed
jlidges.Such legislation is
always
.with limited powers (usually conferred by Parliament), and is

1. See pp. 42-3, 77-81.

320 Parliament and Legislation

subject to abrogation or alteration by Act of Parliament. Unlike legis-
lation by the Queen in Parliament, it may, moreover, be held by a court
to be ultra vires.
The only significant source of subordinate legislation made otherwise
than pursuance of powers delegated by Parliament is the royal pre-
in
rogative. But the Crown has no general inheient power to alter the law of
the land. 2 It has limited prerogative powers to make new constitutions
and to legislate for a slowly dwindling number of colonies acquired by
conquest or cession, to regulate the aflairs of the civil service and the
armed services, and to determine the extent of British territorial waters.
The great bulk of subordinate legislation is made by virtue of parlia-
mentary authority. Parliament delegates powers to legislate; the end-
product is delegated legislation. Ihe average annual output of delegated
legislation easily exceeds the amount oi parliamentary legislation. In 1973
the Public General Acts covered 2248 pages and published Statutory
Instruments totalled 8028 pages. ( Statutory Instruments 3 do not include
by-laws made by local authorities or public corporations.) Roughly 2000
and regulations are made by Ministers or the Crown in Council
sets of rules
or other central rule-making authorities in the course “of a year; the total
number of public and private Acts oi Parliament will be about 150.
Some have depicted this state of affairs as an abdication by Parliament
from its principal constitutional role in favour of the Executive. 4 Acts of
Parliament, sponsored by government Departments and passed into law
with the acquiescence of a docile parliamentary majority, give the Execu-
tive sweeping legislative powers; and safeguards against the abuse of those
powers are inadequate. The most celebrated denunciation of delegation
to the Executive came in 1929 from Lord Hewart, the then Lord Chief
Justice of England. In his book. The New Despotism he attributed over- ,

generous delegations of legislative power to a deep-laid bureaucratic

conspiracy. The Committee on Ministers’ Powers, hastily appointed in
anticipation of the furore that Hewart ’s book would arouse, reported in
1932 that the conspiratorial allegations were unsupported by ‘the smallest
shred of evidence’. 5 Nevertheless, the idea still persists in some quarters
that delegation of legislative power to the Executive is at best a necessary

2. Case oj Proclamations (161 1) 12 Co. Rep. 74.

3. For the meaning of this term, see p. 329. There were also eight pages of pr^roga^'e
instruments in 1973.
4. See especially Lord Hewart ot Bury, The New Despotism; C. K. Alien, Bureaucracy
Triumphant; Law and Orders (though the 3rd edn oi this work was more restrained
than the first); G. W. Keeton, The Passing oj Parliament. For more detached appraisals,
see C. T. Carr, Delegated Legislation; Concerning English Administrative Law ; John
Willis, The Parliamentary Powers oj Lnglisti Government Departments .
5. Cmd 4000 (iy32), p. 59,

Subordinate Legislation 321

 evil,a constitutional impropriety to be half-heartedly condoned on
grounds of expediency, but a potentially serious threat to the liberties of
the subject. Doubtless this bogey will stubbornly refuse to be laid to rest,
but a few elementaiy points can be made.

1. Executive initiative is the dominant feature of parliamentary legislation.

It is a still more dominant feature of delegated legislation. The difference
is one of degree. Differences of degree can indeed
be extremely important.
Delegated legislation, unlike parliamentary legislation, has no committee
stage at which amendments can be put down; 6 seldom is it debated in
Parliament at all. None the less, prior consultation with advisory bodies
and organized interest groups is a more conspicuous characteristic of
delegated legislation than of parliamentary legislation. 7

2. Most of the doom-laden prophecies were based on the experience

of
war and its immediate aftermath. In both the world wars of this century,
vast law-making powers were delegated to the Executive. The Defence of
theRealm Acts 1914-15 conferred a general power to make Orders in
Council for securing the public safety and the defence of the realm. The
Emergency Powers (Defence) Acts 1939-40 were more explicit but equally
permissive, and the 1940 Act specified that Defence Regulations could
make provisions ‘requiring persons to place themselves, their services,
and their property at the disposal of His Majesty*. These enormous powers
were not always exercised reasonably.
Some Defence Regulations remained
too long after the war was over; and new regulations and orders,
in force
sometimes unpopular or ill-conceived, were made under post-war emer-
gency legislation. 8
However, most of them were revoked or lapsed long
ago. This fact does not, of course, imply that contemporary criticism
was
groundless or had no effect.

3. Open a recent volume of Statutory Instruments and

read the first
hundred pages. The tedium of wading through a mass of abstruse tech-
nicalities, barely comprehensible to anyone lacking expert
knowledge of
the subject-matter, is at least an instructive experience; and if one has the

6. With the exception of special procedure orders; see p. 329.

7. See generally S. A. Walkland, The Legislative Process in Great Britain ch.
5.
,

8. See Supplies and Services (Transitional Powers) Act

1945; Supplies and Services
(Extended Purposes) Act 1947; Supplies and Services (Defence Purposes)
Act 1951.
pood rationing regulations were naturally among the least popular. According to a
well-authenticated story, Churchill, on his return to office as Prime
Minister in 1951,
gave instructions that the food ration be constructed in the form of a model
so that he
could assess the quantity better. When the model was laid before him,
he remarked
‘Not a bad meal!’ On being told that the model represented a week’s
rations he ex-
ploded: ‘. . . the people are starving . . .* (Macmillan, Tides oj
Fortune (1969), pp.

322 Parliament and Legislation

 moral stamina, one can plough on through another six thousand
pages
With such dull subject-matter, delegated legislation is in fact a dull
sub^
ject for many of us.
4. Parliamentary scrutiny of delegated legislation admittedly tends
to
be perfunctory. But a select committee qf the House of Commons
has
examined statutory instruments which may be open to objection onconsti-
9
tutional grounds. During a recent five-year period, this committee
reported adversely on only 1 per cent of the instruments scrutinized 10

Before launching into a general denunciation of the content of delegated

legislation, it is best to equip oneself with a sense of proportion.

5. Root and branch attacks on delegated legislation have often

been
prompted by a hearty dislike of public encroachments on freedom of
property and contract. The assailants would have found the regulatory
provisions no less objectionable if they had been embodied in Acts of
Parliament rather than in rules and regulations.

There is one further preliminary point. Delegated legislation is sometimes

confused with the establishment and work of administrative tribunals,

Their only common feature is that both are substitutes: delegated legis-

lation may be resorted to instead of Acts

of Parliament, and administrative
tribunals instead of courts. If substitutes are always a poor second best, if

Parliament and the ordinary courts are the only acceptable media for
legislation and adjudication, and if administrative law means delegated
legislation plus administrative adjudication and is a negation of the rule of
law, then it is right to place the two phenomena side by side in the same
rogues’ gallery. If one disagrees with these propositions, there is little
point in discussing delegated legislation in conjunction with special

tribunals. Such a discussion also generates confusion. The line between

legislation and adjudication may often be thin, but legislation is basically
11
the making of new rules of general application for the future, and adjudi-
cation is the determination of individual claims and controversies. If new
general rules emerge from adjudication, this is incidental to the main
purpose of the process. Obviously, statutory regulations laying down a
new procedure for determining claims to social security benefits are
different in kind from a decision by a national insurance tribunal that X
is or is not entitled to a benefit he has claimed in reliance on the existing

9. See pp. 335-6.

10. See H.C. 455 (1971-72), para. 54, for details.
11. The and ‘particular’ executive action or
difference between ‘general’ legislation
one of degree and sometimes imperceptible. See Walkland, op-cit,
judicial decisions is
pp. 9-10; de Smith, Judicial Review oj Administrative Action (3rd edn), ch. 2.

Subordinate Legislation 323

 rules. Moreover, new tribunals are almost invariably constituted by
12
Acts
of Parliament; the normal role of delegated legislation in relation to
tribunals will be to lay down detailed rules of procedure and to express
in
more precise terms the general functions confided in the tribunals by the
enabling Act.

Delegated legislation: functions and fears

13
Historical note

Before 1832 Parliament delegated rule-making powers to the Executive

spasmodically and, on the whole, sparingly. The plenitude of legislative
authority devolved on Henry VIII by the Statute of Proclamations 1539
was not to be rivalled till 1914; the functions of central government were
not wide enough to justify delegation on the grand scale. The Poor Law
Amendment Act 1834, empowering the Poor Law Commissioners generally
to make regulations for the management of the poor, marked the beginning
of a new epoch. As the trend towards collectivism gathered momentum
after 1870, so did delegations of legislative authority to the central govern-
ment rapidly increase. But if thisdevelopment threatened to undermine
the fabric of the constitution, the dangers were hardly perceived. Dicey,
among constitutional lawyers the most articulate exponent of Whiggish
individualism, thought that Parliament was far too conservative in its
attempts to unburden of detail; and, uncharacteristically, he com-
itself

mended the example of France, where executive decrees amplifying the

general principles of legislation ranged over large areas of the law. 14 The
phase of vehement denunciation began in the 1920s. Temperatures were
lowered by the Report of the Committee on Ministers’ Powers in 1932 15
and have never reached the same height again. The Report provided an
entirely convincing account of the reasons why the delegation of legislative
powers to Ministers was indispensable, as well as indicating some real or
potential dangers in the practice and suggesting safeguards against abuses.
Amid the torrent of regulations descending from Whitehall between 1939
and 1950, few voices were raised to question the constitutional propriety of

12. Some special tribunals have the duty of deciding in their discretion whether to
vary existing rights (for example, by fixing fair rents) or to grant new rights and
privileges (for example, licences).
13. See also Cmd 4060 (1932), pp. 10-15.
14. Introduction to the Study oj the Law of the Constitution (10th edn), pp. 52-3.
15. Cmd 4060. The Committee is often called the Donoughmore Committee, after

the name ot chairman. See also the Report of the Select Committee on Delegated
its first

Legislation 1953 (H.C. 310-11 (1952-53)); The Process oj Legislation (Second Report
ol the Select Committee on Procedure 1971 (H.C. 538 (1970-71)); Report of the Joint
Select Committee on Delegated Legislation 1972 (H.C. 475 (1971-72)).

324 Parliament and Legislation

delegation. The main constitutional issues were: Where should the lines
be drawn between parliamentary and delegated legislation? And how
could safeguards against the misuse of delegated powers be improved?
These issues became less important as other horses emerged to be flogged.

Purposes o] delegation

The reasons for delegating legislative powers to the Executive can be

summed up in one phrase: the promotion of efficiency.

1. It is inefficient and unnecessary to incorporate a mass of complex

detail in a parliamentary bill, or indeed in the schedules to such a bill,

unless such provisions are designed to make

important changes inreally
the law (for example, imposing substantial criminal liabilities or altering
taxes), in which case they ought to be exposed to full parliamentary
scrutiny. Few members of any Parliament will have the expert knowledge
required to table and debate amendments to highly technical legislation;
but a dogged group of the initiated can consume parliamentary time in
this way, often for the ulterior purpose of impeding a Government’s
general legislative programme. Delegation saves parliamentary time.
2. The enactment of tortuous and cumbersome legislation, bulging with
minutiae, disfigures the statute book and tends to detract from the prestige
of Parliament. One can admire Land
the diligence of the draftsmen of the
Commission Act 1967 16 without being entranced by their product; some of
the provisions of this convoluted statute should have been left to sub-
ordinate legislation.

3. It may be impossible to bring a major Act (for example, on town

planning, social security, nationalization of an industry, or reform of
local government structure) into operation the day it receives the royal
assent. Postponement may be necessary in order to undertake adminis-
trative reorganization or to conduct detailed consultations with various
bodies with a view to modifying the general principles of the Act in their
application to particular areas or sections of the community. Sometimes
17
this can be effected by fixing the operative date when the bill is passed.
Sometimes this is impracticable, and the Act will therefore provide that it
will come into force on such day as Her Majesty by Order in Council (or
a Minister by statutory instrument) shall appoint. In any event, powers to
make supplementary regulations on aspects of the new design will almost
certainly be needed in the interest of flexibility, fairness and efficiency.

16. Now repealed: Land Commission (Dissolution) Act 1971.

17. Different dates may be fixed for bringing into operation different parts of an Act.
See, for example, Local Government Act 1972, s. 273.

Subordinate Legislation 325

4. When an Act is passed, it is often reasonable to suppose that new con-
tingencies (such as cases of special hardship, or technological develop-
ments) will arise although their exact form cannot be predicted at the
date of enactment. It will be more sensible to give the responsible Minister
powers to make regulations to amplify the Act should such contingencies
arise than to compel him to rely on the chance of finding a place for
amending legislation in an already long legislative queue.

5. Swift emergency action may have to be taken during a parliamentary

recess or at a time when serious damage may be done if the normal pro-
cesses of parliamentary legislation have to be followed. Sudden outbreaks
of epidemics, natural disasters, the discovery and introduction of new
dangerous drugs or poisons, paralysis of the economy by industrial
stoppages or a threat to the stability of the pound resulting from an
1

international financial crisis, may call for the immediate exercise of rule-
making powers. Sometimes, of course, it is feasible to rush a bill through
all its stages in both Houses within a few hours; the Emergency Powers

(Defence) Act 1939 and the Southern Rhodesia Act 1965 (consequential
on UDI) fell into this exceptional category. Sometimes a possible need
for urgent action can be provided for by the enabling Act in the form of
a grant of executive powers if general emergency regulations are unlikely
to be required. However, when in March 1972 the United Kingdom
Government decided that it was imperative to impose direct rule on
Northern Ireland and suspend the institutions of Stormont, the Northern
Ireland (Temporary Provisions) Act 1972 not only vested executive
authority in respect of Northern Ireland in the Secretary of State, but
also provided that Orders in Council could be made on any matter within
the competence of the Northern Ireland Parliament. A series of important
18
legislative changes were made under this wide-ranging delegated power.

6. Changes in the constitutions of dependent territories, and constitutions

adopted immediately before independence, are better embodied in Orders
in Council than in Acts of Parliament. This is not because they are un-
important but because they are almost invariably the outcome of an
intergovernmental negotiation, and if it were open to Parliament to delete
or modify individual provisions of the constitution a delicate balance
might be upset and the political consequences could then be very serious.
American experience supports this comment. The constitutions of two
dependent territories of the United States, the Virgin Islands and Guam,
are contained in organic Acts alterable only by Congress. Constitutional
changes agreed between the United States Administration and the Virgin
Islanders were held up for several years before 1968 because of minor

18. See'further ch. 30.

326 Parliament and Legislation

 objections by the relevant congressional committees or pressure
on th
congressional timetable. This caused deep resentment locally. The
United
States is fortunate in having only a handful of dependent territories
Th0
United Kingdom could not afford this leisurely and pernickety
procedure

Where delegation is open to criticism

1. It is a primary function of Parliament to determine the

guidelines of
19
legislative policy. Parliament should not, therefore, delegate to
Ministers
power to make regulations on matters of general principle unless it lays
down in the enabling Act standards delimiting the boundaries of
the
delegate’s discretion. Skeleton legislation is justifiable only in order
to
deal with a state of dire emergency (such as the Northern Ireland situation
since 1972) or a quite exceptional situation, such as has been created
by
Britain’s accession to the European Communities. In countries with
written constitutions, a blanket delegation of legislative power to the
Executive may be held to be unconstitutional. 20
2. Grants of delegated power ought not to be so expressed that it becomes
impossible in practice for the courts to review the limits of the powers
exercised. Statutory formulae purporting to oust the jurisdiction of the
21
courts by express language are now uncommon. Less uncommon are
statutory provisions endowing Ministers with powers which in their
opinion are requisite or expedient for a broadly framed statutory purpose.
When the validity of regulations made in pursuance of such powers is
challenged, very strong grounds will have to be adduced before a court
22
will be persuaded to intervene. Moreover, Ministers and their advisers
endowed with so large a discretion may be unable to resist temptations to

stretch their powers beyond reasonable limits. Such delegations may thus
offend against proposition (1).

3. Criticism has been ‘Henry VIII clause’,

levelled against the so-called
under which Parliament delegates authority to make regulations amending
23
Acts of Parliament. This formulation is not widely used, and it is nor-
mally innocuous if the grant of power is confined to a limited period for
19. See generally J. A. G. Griffith (1951) 14 Mod. L. Rev. 279, 425.
20. See, for example, Kent v. Dulles 357 U.S. 116 (1958) (United States); Re Delhi
Laws Act (1951) S.C.R. 747 (India), though see H. M. Seervai, Constitutional Law of
India , pp. 874-86.
21. See p. 341.
22. The point is well made by Lord Diplock obiter in McEldowney v. Forde [1971]
A.C. 632 at 659-61, though see Utah Construction and Engineering Co. v. Pataky
[1966] A.C. 629; Customs and Excise Commissioners v. Cure and Deeley Ltd [1962]
1 Q.B. 340. See also pp. 339-40.
23. cf. Cmd 4060 (1932), pp. 36-8, 59-61, 65.

Subordinate Legislation 327

 the purpose of enabling draftsmen to make consequential adaptations to
miscellaneous enactments that may have been overlooked when the
24
principal Act was passed.

4. Seldom if ever will a grant of power to make regulations imposing

liabilities with retroactive effect be justified. 25

5. The power to impose or vary taxation is, in general, tco important to

be delegated by Parliament. But a flexible power to mike regulations

modifying, for example, rates of indirect taxation or customs duties may
be a valuable ancillary instrument for the management of the economy. 26
6. In the, interests of certainty, Parliament ought to identify the recipient

of its delegated powers, and when delegating legislative authority it

should not authorize sub-delegation of those powers to unnamed persons.
In and immediately after the Second World War, when sub-delegation
was expressly authorized by the Emergency Powers (Defence) Acts and
their successors, instances of five-tier delegation arose. 27

The European Communities Act 1972

Quite apart from Community regulations which will be directly applicable

of their own force (section 2(1)), further regulations will have to be made
in this country under powers delegated by the Act (section 2(2)) to give
Community directives and decisions and also to implement in
effect to
some Community regulations. Orders in Council and depart-
fuller detail
mental regulations made under these delegated powers are to have the
effect of Acts of Parliament and can include any provision that might be
28
made in an Act of Parliament (section 2(4)) except that they are not to
29
impose or increase taxation or have retroactive effect or sub-delegate

24. See, lor example,Kenya Independence Act 1963, s. 5(4). An unusual power to
amend the parent Act itself was conferred by section 16(2) of the Race Relations Act
1968 (see now the Race Relations Act 1976, s. 71. And see the extraordinary device
in the Remuneration, Charges and Grants Act 1975, s. 1).
25. Such legislation is likely to be held to be ultra vires unless retroactive operation
has been expressly authorized by the enabling Act. cf. authorities cited in The Abadesa
[1968] P. 656 at 659. See also Master Ladies Tailors Organisation v. Minister of Labour
and National Service [19501 2 All E.R. 525 at 528. See, however, Sabally &N'Jie v.
Att -Gen. [19651 1 Q.B. 273.
26. cf. Finance Act 1961, s. 9.

27. J. A. G. Griffith and H. Street, Principles of Administrative Law (5th edn), pp.
59-66.
28. For section 2(4), see pp. 78-80. Clearly such regulations can repeal or amend
Acts of Parliament m force at the time when they are made. But it is arguable that the
regulations will be ultra vires unless related to Community affairs.
29. But taxation can be imposed by directly applicable Community instruments
(s. 2(1)).

328 Parliament and Legislation

 powers (other than power to make procedural rules for courts
legislative
and new criminal offence punishable with more
tribunals) or create a
than two years’ imprisonment or a fine more than £400. This is probably
the most sweeping grant of delegated legislative powers to the Executive
in modem times except under emergency conditions.

Statutory instruments

Subordinate legislation may be designated as rules, regulations, orders,

by-laws, schemes, measures, or by a variety of other appellations. The
most important generic description is ‘statutory instrument’. The defi-
30
nition of this term is complex and raises difficult points of interpretation.
Broadly, the term covers delegated legislation made under (1) powers
conferred by statutes after 1947 on Her Majesty in Council, or on Ministers
or Departments, to make, confirm or approve subordinate legislation
where the enabling Act says that the power shall be exercisable by statutory
instrument and (2) powers conferred by statutes before 1948 on these
authorities or other rule-making authorities (such as the Rule Committee
of the Supreme Court) to make subordinate legislation, and on Ministers
to confirm or approve instruments of a legislative (but not of an executive)
character which also have to be laid before Parliament. A statutory
instrument comes into effect when made unless (as is nearly always the
case) the instrument specifies a later date on which it is to come into
operation.
By-laws of local authorities and public corporations are not statutory
instruments. Nor are measures of the General Synod of the Church of
England. 31 Nor are provisional orders, which do not have legal effect
till confirmed by Act of Parliament and are therefore not a form of dele-

gated legislation at all. For most legal purposes, ‘special procedure orders’,
which have replaced provisional orders under a number of Acts of Parlia-
ment, are statutory instruments; they will normally have legal effect
without a confirmation Act. 32 Compulsory purchase orders, being of an
30. For a full analysis, see Griffith and Street, op. cit., pp. 42-56, considering the
meaning of the Statutory Instruments Act 1946 and regulations and an Order in Council
made thereunder in 1947.
31. Made in pursuance of the Synodical Government Measure 1969; these measures
are submitted for the royal assent if approved by both Houses of Parliament; see
Wade and Phillips, Constitutional Law (8th edn), ch. 34.
32. See Statutory Orders (Special Procedure) Acts 1945 and 1965; the procedure
on such orders (which is attracted where an Act prescribes that an order authorized
to be made shall be ‘subject to special parliamentary procedure’) involves opportunities
to object to the order at a local inquiry and also by petition to Parliament; the order
may be amended in pursuance of a report by a joint committee of the two Houses.
See also Griffith and Street, op. cit., pp. 34-6.

Subordinate Legislation 329

executive rather than a legislative character, are not usually classified as
statutory instruments. Nor, in general, are instruments made in pursuance
of sub-delegated powers, but it is possible for them to fall within the
definition of statutory instruments. 33Nor, of course, are resolutions of
the House of Commons statutory instruments; normally their legal effect
is confined to matters arising within the House; but under some modern

Acts of constitutional importance such resolutions have been accorded

34
legislative effect.
Statutory instruments must be printed, numbered, published and sold.
They are also published in annual volumes in chronological sequence.
However, local or temporary instruments, instruments made available
in a separate series to persons directly concerned, and very bulky schedules,
may be exempted from the requirement of publication. The annual
volumes were called Statutory Rules and Orders before 1948; 35 since 1948
they have been entitled Statutory Instruments. Prerogative legislative
instruments are unnumbered but are published and appear in an appendix
to each volume.
Government statements of policy and intent, departmental circulars
giving instructions to local authorities, and procedural rules issued by
certain other public bodies, may be legislative in effect and will usually
be published; but they will not be published as statutory instruments
even if made in pursuance of statutory powers. 36 The extra-statutory
concessions offered by the Inland Revenue in favour of taxpayers are
37
clearly legislative in substance but, just as clearly, are not within the
definition of statutory instruments. The Immigration Rules are not classi-
fied as statutory instruments, perhaps because it is not clear that the power
to make them is directly conferred by statute. Nor are the Code of Indus-
trial Relations Practice and the Highway Code, which do not have quite

the same legal force.

33. Regulations made by designated Ministers under the European Communities

Act 1972 (see European Communities (Designation) Order 1972 lS.1. 1972, No. 1811))
are statutory instruments (s. 2(2); Sched. 2, para. 2(1)).
34. See Provisional Collection of Taxes Acts 1913 and 1968 (temporary authority
to collect income tax and other annual taxes); Exchequer and Audit Departments Act
1957, s. 1(3) (increase in salary of Comptroller and Auditor-General); Parliamentary
Commissioner Act 1967, s. 2(2) (increase m salary ol Parliamentary Commissioner
for Administration). See also House of Commons Disqualification Act 1975, s. 6(2),
(3) (relieving M.P. from effect of disqualification); Murder (Abolition of Death
Penalty) Act 1965, s. 1.
35. There is also a consolidation entitled Statutory Rules and Orders and Statutory
Instruments Revised comprising subordinate legislation in force at the end of 1948.
,

36. cf. Blackpool Corporation v. Locker [1948] 1 K.B. 349.

37. cf. R. v. Customs and Excise Commissioners ex p. Cook [1970] 1 W.L.R. 450
,

at 454-5 (where attention was drawn to their lack ol any legal basis).

330 Parliament and Legislation

 Safeguards
Contraceptive and ante-natal

The most abuse of delegated powers is not

effective safeguard against the
to delegate them such terms as to invite abuse. When a bill is first
in
drafted by parliamentary counsel on instructions given by the sponsoring
Department, it will go to that Department, to the Legislation Committee
of the Cabinet (of which the Lord Chancellor and the Law Officers of the
Crown are members) and may go to a specialized Cabinet committee
or an inter-departmental committee.
A number of policy and technical decisions have to be taken: where
the lines should be drawn between matters explicitly to be set out in the
bill and matters to be left for amplilication by the exercise of delegated

powers; how precisely the limits of delegated power are to be worded-

whether the Act should require subordinate legislation to be laid before
Parliament at all, and if so, whether it should also be subject to annulment
by resolution of either House, or should require approval by affirmative
resolution of one or both blouses; and so on. lo what extent general
criteria have been formulated as guides to making these decisions is far
from clear, though it can be assumed that the parliamentary draftsmen
have regard to precedents and do not accede automatically to every
eccentric departmental request. If the draftsmen consider an aspect of a
draft bill to be objectionable on grounds of constitutional principle, they
may succeed in carrying the sponsoring Department’s legal advisers with
them. If this is not enough and they wish to pi ess their point, they will
have a further opportunity when the final draft oi the bill is examined by
the Law Officers.
The Legislation Committee of the Cabinet also reviews departmental
drafts of statutory instruments which are of exceptional importance or
special interest to other Departments or may give rise to criticism on the
grounds that they are unusual in their content or of doubtful constitutional
propriety. The departmental legal advisers may obtain the aid of parlia-
mentary counsel in preparing the draft of a particularly important in-
strument. 38
Before regulations are made by a Department, prior consultation with
advisory bodies and organized interest groups is the general practice. 39
Statutes often require that named bodies, or organizations identified by
description (for example, representative of local authorities) be consulted*
in advance. Procedural regulations for tribunals and inquiries have to be
submitted in draft to the Council on Tribunals. 40 Drafts of social security
38. S. A. Walkland, The Legislative Process in Great Britain pp. 63-5.
,

39. Griffith and Street, op. cit., pp. 123-39; J. F. Garner [I964J Public Law 105,
40 liibunals und Inqumcs Act 1971, ss. 10, 11.

Subordinate Legislation 331

regulations have to be submitted to the National Insurance Advisory
Committee, a statutory body; the Committee must notify persons and
bodies likely to be affected and give an opportunity for objections to be
lodged; the Committee submits its report to the Secretary of State who,
when he makes the regulations, must also lay the report before Parliament
and state how far he has given effect to the Committee’s recommendations
and why he has not accepted them. In practice he has almost invariably
41
accepted them. Before the Secretary of State for Northern Ireland could
initiate subordinate legislation under the 1972 Act he was to refer it in

draft, where practicable, to the advisory Northern Ireland Commission. 42

Under a few statutes, the initiative in preparing draft rules and regu-
lations (for example, for agricultural marketing schemes) is given to
bodies representing persons engaged in the occupation, and occasionally
to individuals so engaged; such schemes cannot normally be given legis-
without the responsible Minister’s approval.
lative effect
By-laws made by
local authorities are subject to confirmation by the
appropriate Minister, who is in most cases the Secretary of State for the
Environment. Sets of model by-laws are available, and local by-laws
deviating widely from these without special reasons are unlikely to be
confirmed.

Publicity

‘Does any human being read through this mass of departmental legis-
lation?’ asked Lord Hewart. 43 Perhaps not; but since ignorance of the
law is, in general, no excuse for breaking it, regulations ought to be
readily available to members of the public and their legal advisers as soon
as they come into force. The principles governing publication have already
been noted. 44 An instrument may nevertheless have legal effect before it
45
is published and available for sale at a government bookshop. This is
unusual; indeed, Departments now try to follow a general rule that an
instrument shall not come into operation for twenty-one days after being
46
laid before Parliament. But to mitigate the hardship that may still arise,
41. Griffith and Street, op. cit., pp. 130-36; Social Security Act 1975, ss. 138(2),
139 and Sched. 15 (replacing the National Insurance Act 1965).
42. Northern Ireland (Temporary Provisions) Act 1972, Sched. 1, para 1 (1).

43. The New Despotism , pp. 96-7.

44. p. 330.
45. See R. v. Sheer Metalcraft Ltd [1954] 1 Q.B. 586. Contrast Johnson v. Sargant
& Sons [1918] 1 K.B. 101 (statutory order held not to have effect till it became known;
the authority of this decision is now doubtful). See further Lanham (1974) 37 Mod .

L.R. 510.
46. H.C. 475 "(1971-72), para. 62. But not all instruments have to be laid before
Parliament: see below.

332 Parliament and Legislation

section 3(2) of the Statutory Instruments Act 1946 provides that it shall be
a defence to criminal proceedings for contravening an instrument to prove
that the instrument has not been issued at the date of the contravention
unless the prosecution proves that reasonable steps have previously been
taken to bring its purport to the notice of the public or persons likely to be
affected or the person charged.
In the best of all possible worlds, statutory instruments would be not
only available but also intelligible. This desideratum may be unattainable,
but the opaque has become translucent by the modern practice of append-
ing brief explanatory notes at the end of statutory instruments, indicating
their general purport and effect.

Parliamentary proceedings 47

The parent Act may may

not require the instrument to be laid before
or
48
Parliament. If there is to laying, a member of Parlia-
no requirement as
ment who gets to know of the instrument may still put down a question
about it to the responsible Minister or seek to raise the matter in debate.
If the instrument has merely to be laid, or laid in draft, before Parliament,
it will be delivered to the Votes and Proceedings Office of the House of
Commons. 49 No opportunity provided by parliamentary procedure for
is

the instrument to be discussed, but its existence will at least be brought to

the notice of members and
the Minister is more likely to be questioned
about it than not laid before Parliament at all. Moreover, any
if it is

instrument required to be laid before Parliament does not become opera-

tive until so laid, unless it is essential for it to become operative at once,
in which case the reason must be notified to the Lord Chancellor and the
Speaker forthwith. 50
It is more common for the enabling Act to provide that an instrument

shall be laid, or laid in draft, subject to the negative resolution procedure.

This means that it is open to any member to move a prayer to annul the
instrument (or, if it has been laid in draft, to move that it not be made)
within forty days of being laid. 51 Such motions are put at the end of the
day’s business; debate on such a motion must be terminated or adjourned

47. See John E. Kersell, Parliamentary Supervision of Delegated Legislation Report ;

of the Joint Select Committee on Delegated Legislation (H.C. 475 (1971-2)).

48. The large majority of statutory instruments in this category are instruments of
a local nature.
49. S.O. No. 120; Laying of Documents before Parliament (Interpretation) Act 1948,
s. 1.

50. Statutory Instruments Act 1946, s. 4(1). See also above, and S.O. No. 121.
51. ibid., s. 5(1).

Subordinate Legislation 333

not later than1 1 .30 p.m. in the Commons.
52
In 1973 provision was made 53
for statutory instruments against which a negative resolution has been
moved, or which are subject to the affirmative resolution procedure (see
below), to be considered on their merits by new standing committees of the
House of Commons - but this procedure can only be invoked at the
instance of a Minister.
A minority of instruments are required to be laid, or laid in draft,
subject to an affirmative resolution of one or both Houses; unless a
resolution approving the instrument is passed within the period (if any)
prescribed by the enabling Act, the instrument ceases to have effect or
cannot be made. 54 Instruments made subject to that procedure are nor-
mally those regarded as being of special constitutional importance (for
example, varying constituency boundaries) or imposing taxation (in which
case an affirmative resolution of the Commons alone will be needed). A
statutory instrument made under the European Communities Act may be
laid in draft subject to the affirmative resolution procedure; if not so laid
in draft, it shall be subject to the negative resolution procedure. 55
The value of the negative resolution procedure is not easily assessed.
Motions to annul statutory instruments are infrequent; rarely are they
successful, 56 and it is open to the Minister to present the instrument afresh;
but from time to time a Minister withdraws an instrument in the face of
hostile criticism and may perhaps submit it in a revised form. One sub-
stantial criticism of this procedure is that because of pressure on parlia-
mentary time it is not always possible to debate a prayer to annul an
instrument. 57 Hardly ever does an Act make provision for the amendment

52. S.O. No. 4.

53. S.O. No. 73 A; 853 H.C. Deb. 680-95 (22 March 1973).
54. Passing a negative resolution, or failing to pass an atfirmative resolution does
not have the effect of invalidating anything already done in pursuance of the instru-
ment.
55. 1972 Act, Sched. 2, para. 2(2). See also Northern Ireland (Temporary Provisions)
Act 1972, Sched. 1, para. 4(2), (5).

56. A spectacular exception to the general rule was the rejection of the revised
Immigration Rules (not technically a statutory instrument, but the distinction is im-
material) made under section 3(2) of the Immigration Act 1971. The prayer tp annul
was carried because some Conservative backbenchers objected to giving preference to
Community nationals over citizens of ‘old Commonwealth’ countries. See 846 H.C.
Deb. 1343-459 (22 November 1972). Revised Immigration Rules had to be introduced.
The House of Lords has never carried a negative resolution (H.C. 475 (1971-72),
para. 13), although (or because) their opposition cannot be overridden under the
Parliament Acts procedure.
57. H.C. 538 (1970-71), paras. 41-6; H.C. 475 (1971-72), paras. 95-128, for pro-
posals for enlargement of the opportunities. In 1970-71 only eleven out of forty-seven
prayers were debated within the forty-day period.

334 Parliament and Legislation

 of a statutory instrument. But the possibility that damaging parliamentary
publicity may.result from a debate on an ill-drafted or otherwise objec-
tionable instrument is of some utility as a safeguard against the misuse of
delegated power.
The affirmative resolution procedure is more important, in that the
Government must find time to explain why the instrument should be
approved and thus lays itself open to critical comment. In November
1969 the Home Secretary laid himself open to acrimonious criticism by
moving (successfully) that four draft Orders in Council purporting to
give effect to Boundary Commission recommendations be not approved
57
by the Commons. But if all statutory instruments were made subject to
this procedure, a primary object of delegating legislative powers to the
Executive - to make for economical use of parliamentary time - would
be frustrated.

Parliamentary scrutinizing committees

In 1944 a Select Committee of the House of Commons on Statutory

Rules and Orders was appointed to examine and report on certajn aspects
of regulations laid before the House. That the Executive should commend
the subjection of its legislative output to a new form of detailed parlia-
mentary scrutiny in time of war is remarkably interesting. The Com-
mittee has been re-appointed each session. The name was changed to the

Select Committee on Statutory Instruments, and in 1973 it became the

Joint Select Committee on Statutory Instruments. This Committee re-

placed both the House of Commons Committee and the House of Lords
59
Special Orders Committee. The terms of reference of the Joint Select
Committee in 1977 were to consider every statutory instrument of a
general character and various other instruments which, under the parent
Act, were laid or laid in draft before the House subject to the negative or
affirmative resolution procedure, with a view to deciding whether the
special attention of the House should be drawn to the instrument on any
of these grounds: that (i) it imposes charges on the subject or the public
revenue; (ii) it is ostensibly immunized by the parent Act against challenge
in the courts; (iii) it purports to have retrospective effect in the absence of
express authority given by the parent Act; (iv) there appears to have been
unjustifiable delay in publication or laying before Parliament; (v) where it

is essential for an instrument to come into effect before being laid, there has

58. See pp. 236-8, 297.

Although the function of the latter of examining instruments against which
59.
persons whose interests are directly affected may petition is now vested in the Lords
Hybrid Instruments Committee, set up in 1975.

Subordinate Legislation 335

been unjustifiable delay in notifying the Speaker of this fact and the
reasons;(vi) where the instrument gives rise to doubts whether it is intra

vires, or where it appears to make an unusual or unexpected use of the

powers conferred by the parent statute; (vii) where it requires elucidation;

or (viii) where the draftsmanship appears to be defective; or any ground
‘which does not impinge on its merits or on the policy behind it; and to
60
report their decision with the reason thereof in any particular case'.
Before deciding to draw the attention of the House to an instrument
on any of these grounds, the Committee must give the Department con-
cerned an opportunity of putting its case.
The Committee consists of seven members of each House, of whom two
are a quorum. It is assisted by Counsel to the Speaker and by Counsel to
the Lord Chairman of Committees. That its function is strictly technical
and non-partisan is emphasized by the convention that the chairman shall
be a member of the Opposition. Its concern is with efficiency and constitu-
tional propriety, extending beyond (but including) consideration of the
strict legality of the powers exercised by the prescribed authority. It can

comment, and has commented, on inconsistencies in legislative practice (for

example, in providing for parliamentary proceedings on some instruments
but not on others of a similar character) and on unsatisfactory features of
sub-delegation of powers. In its early years many of its adverse reports were
based on undue delay in publication or laying before Parliament; depart-
mental procrastination suddenly became very rare. The fact that regu-
lations are on the whole less obscurely drafted than they were twenty-five
years ago can be partly attributed to its influence. Perhaps the patient
drudgery of the Committee has had a highly salutary effect on overweening
bureaucrats; perhaps the dangers of abuse of delegated legislative powers
were greatly exaggerated by some critics; but the fact is that out of 1515
instruments examined by the Committee in the 1970-71 session, exactly
three were brought to the attention of the House. That a few instruments
made an unusual use of the powers granted, and that others were obscurely
worded - these had become the main grounds for adverse reports by the
1960s - was hardly surprising. What was surprising was the small size of
this problem viewed by an experienced scrutinizing committee.
No special opportunity has been provided by parliamentary procedure
for debating the Committee’s reports; this must have detracted from
its

efficiency. But an adverse report delivered swiftly enough may lead to a

prayer for annulment, or opposition to an affirmative resolution; or such

a report may peisuade a Department to amend or revoke an instrument.

60. The words in quotations marks had been added in 1971. M.P.s consider without
peers those instruments which the parent Act directs to be laid bciore aua lo be subject
to proceedings in the House of Commons only.

336 Parliament and Legislation

 Judicial review

The courts may hold a subordinate legislative instrument to be invalid if

it is ultra vires , i.e. in excess of powers. This jurisdiction extends to pre-
rogative instruments as well as statutory rules, regulations and by-laws.
The validity of such instruments may be impugned directly or indirectly.
Direct frontal challenges are unusual and are seldom successful; a plaintilF
may find it impossible to establish that his personal interests are suffi-
ciently affected by a general legislative instrument to give him title to
61
sue Collateral, or indirect, attack is more common; a person is pros-
.

ecuted for breach of a regulation or by-law, or is sued for breach of a

contract the binding force of which is dependent on the validity of a
regulation or by-law, and his defence is that the regulation or by-law is
Under Community law this appears to be the only method by
invalid.
which Community instruments can be impeached before national courts
as being ultra vires the treaties.
An instrument may be invalid because of a formal or procedural defect,
or because it goes beyond the limited scope of delegated authority on a
matter of substance. Challenges based on defects of form or procedure
present difficulties in that not every such defect is a source of invalidity.
Formal or procedural requirements are classifiable as either mandatory
or directory. Non-compliance with a mandatory requirement is a poten-
tially vitiating defect; if, however, the requirement is construed as being
merely directory, the courts may take the view that substantial compliance
is enough or even that total non-compliance is a mere error that does not

affect the validity of what has been done. Prediction of how a court will
regard non-compliance is difficult; precedents afford little guidance, and
although the practical importance of non-compliance with the duty is the
main criterion, a court will sometimes take a stringent view of failure to
observe a minor formality 62 Non-observance of duties to consult with a
.

63
specified body or consider objections or give an opportunity to be
64
heard are likely to be held to render regulations invalid. Rather sur-
prisingly, it appears that mere failure to publish an instrument does not
render it invalid if other prescribed preliminaries have been observed ; 65

61. But see Hotel and Catering Industry Training Board v. Automobile Proprietary Co.
[1969] 1 W.LJR. 697, where the House of Lords granted a declaration that a
statutory
instrument was ultra vires in so far as it purported to impose an industrial training
levy on a members’ club (who had been defendants in the proceedings at first instance).
62. See, for example, Patchett v. Leathern (1949) 65 T.L.R. 69.
63. Agricultural etc. Training
Boardv. Aylesbury Mushrooms Ltd [ 1 972] 1 W.L.R. 190.
64. R. v. Housing Appeal Tribunal [1920] 3 K.B. 334 at 342, 343, 346.
65. See pp. 332-3; but note the mitigating effect of s. 3(2) of the Statutory Instru-
ments Act 1946.

Subordinate Legislation 337

 s

the effect oi breach of a duty to lay a statutory instrument before Parlia-

ment is doubtful, but this may well be held to render the instrument
66
inoperative .

If power is delegated only to do X, the delegate cannot do Y, unless Y

is necessarily implicit in or incidental to the power to do X. Power granted
for purpose A cannot be used instead for purpose B. These ostensibly
straightforward questions of statutory interpretation may give rise to
considerable problems in practice - for example, where the statutory
purpose is not clearly defined , 67 or where the existence of a link between
the subject-matter of the delegated power and the statutory purpose is
68
expressed by the parent Act to be determinable by the delegate himself .

Again, a strictly literal interpretation of the enabling section may frustrate

the general object of the Act or wreak injustice; a court will not necessarily
shut its eyes to this possibility. Nor will a court disregard the context in
which regulations have been made; regulations made in a state of grave
emergency may be construed more benevolently in favour of the Executive
than regulations made under the same powers when the seriousness of the
emergency has diminished.
.Forecasts of how a court may construe the validity of regulations are
further complicated by other factors. Thus, ordinary literal interpretation
may be modified in the light of common-law presumptions of legislative
intent. For instance, there is a presumption that express statutory auth-
ority is needed to validate the exercise of delegated powers interfering
with the liberty of the person, or excluding the citizen from access to the
ordinary courts for the determination of his legal rights and liabilities 69 ,

or imposing taxation 70 or taking away property rights without com-

,

pensation 71 The circumstances in which these presumptions will carry

.

decisive weight are not easy to predict 72 In the First World War, power to
.

make regulations for securing the public safety and the defence of the

66. R. v. Sheer Metalcraft Ltd [1954] 1 Q.B. 586 at 590. It is still open to the courts
to resolve these difficult issues.
House of Lords in McEldowney v. Forde
67. cf. the 3 :2 division of opinion in the
[1971]A.C. 632, a case arising under the Northern Ireland Civil Authorities (Special
Powers) Act 1922 (now repd).
68. See pp. 327, 339-40, 554.
69. Chester v. Bateson [1920]
1 K.B. 829; Customs and Excise Commissioner v. Cure

& Deeley Ltd [1962] 1 Q.B. 340.

70. Cure & Deeley's case (above); see also Att.-Gen . v. Wilts United Dairies Ltd
(1921) 37 T.L.R. 884 (C.A.), but see p. 274, above.
71. For example, Newcastle Breweries Ltd v. R. [1920] 1 K.B. 854.
72. Contrast, for example, in the field of town planning decisions (executive acts),
the case of Hall & Co . v. Shoreham-by-Sea U.D.C. [1964] 1 W.L.R. 240 (presumption
against deprivation of property rights without compensation applied) with West-
minster Bank Ltd v. Beverley B.C. [1971] A.C. 508 (presumption not applied).

338 Parliament and Legislation

realm was held to justify the making of a regulation for the preventive
detention of British subjects on security grounds without trial, 73 notwith-
standing the strong common-law presumption in favour of individual
liberty. Three years later a court held that the same statutory power was
not wide enough to validate a wartime regulation prohibiting landlords
from taking legal proceedings for possession orders, against tenants who
were munition workers, without the prior consent of a Minister. 74 In the
Second World War, an undoubtedly valid defence regulation, providing
that a Secretary of State could make orders for the detention of persons
whom he had ‘reasonable cause’ to believe to be of hostile origin or
associations and in need of subjection to preventive control, was not con-
strued by the courts as importing an objectively determinable test of
reasonableness. To establish the invalidity of a detention order, a detainee
would have to discharge the impossible burden of proving that the Sec-
retary of State did not genuinely believe he had ‘reasonable cause’. 75 In
a number of cases in which the validity of subordinate legislation and
executive acts affecting property rights was challenged during and im-
mediately after the Second World War, the courts adopted a strictly
literal interpretation of the enabling legislation in favour of the Executive,
The enabling Act was typically expressed in the form: ‘If it appears to’ or
‘if in the opinion of’ the Minister, or ‘if the Minister is satisfied that’ a
given state of affairs existed, he could make such
orders as appeared to
him necessary or expedient for a generally worded purpose. 76 By the early
1950s this self-denying ordinance had been slightly modified. The Judicial
Committee of the Privy Council could state that a power so exercised
had to be ‘capable of being related to one of the prescribed purposes*. 77
In 1961 the pendulum had swung far enough for a High Court judge
(invoking common-law presumptions of legislative intent) to hold that a
statutory power authorizing the Commissioners of Customs and Excise

73. R. v. Halliday, ex p. Zadig [1917] A.C. 260.

74. Chester v. Bateson [1920] 1 K.B. 829.
75. Liversidge v. Anderson [1942] A.C. 206. Contrast, on the meaning of ‘reasonable
cause* or ‘reasonable grounds’, Nakkuda Ali v. Jayaratne [1951] A.C. 66 at 76-7,
The only other ground on which a detention order could be challenged was that it ’

had been improperly made out: R v. Secretary of State for Home Affairs , ex p Budd
. .

[1942] 2 K.B. 14 at 22. See ch. 23.

76. For example, R. v. Comptroller General of Patents ex p. Bayer Products Ltd
,

[1941] 2 K.B. 306; Point of Ayr Collieries Ltd v. Lloyd-George [1943] 2 All E.R. 547.
In CarltonaLtdv. Commissioners of Works [1943] 2 All E.R. 560 at 564, Lord Greene
M.R. said, ‘All that the court can do is to see that the power falls within the four
. . .

corners of the power given by the legislature and [is] exercised in good faith. Apart
from that, the courts have no power at all to inquire into the reasonableness, the policy
the sense, or any other aspect of the transaction.’
77. Ail. -Gen. for Canada v. Halid & Carey Ltd 11952] A.C. 427 at 450.

Subordinate Legislation 339

 to make regulations ‘for any matter for which provision appears to them
necessary for the purpose of giving effect to the Act’ was too narrow to
validate a regulation by which they gave themselves power to determine
conclusively what amount of purchase tax was payable in individual
78
cases . This perhaps an extreme case of judicial activism. Nowadays the
is

courts are unlikely to review the matter de novo but to ask whether the
competent authority had misdirected itself and whether the regulations
were reasonably capable of being related to the grant of power 79 .

Judicial tests for the validity of by-laws have generally been understood
to be stricter than the tests for the validity of regulations made by Ministers
or Her Majesty in Council. Although by-laws made by elected local
authorities for the general welfare are to be benevolently construed 80 ,

they may be still held ultra vires and invalid if they are excessively uncer-
tain in their terms or repugnant to the general law of the land or manifestly
unreasonable. The English courts have yet to hold a statutory instrument
to be ultra vires explicitly on these grounds alone. But a court might hold
an instrument to be too vague to be capable of being related to a per-
81
mitted purpose so offensive to the general principles of the law as to be
;

beyond the contemplation of the enabling Act 82 or so unreasonable that

;

83
it could not be ascribed to the enabling provisions Perhaps, then, the
.

differences in the scope of judicial review of by-laws, on the one hand, and
statutory instruments, on the other, are only matters of degree or even
verbal distinctions.
Although no English authority directly covers the point, it is highly
probable that the courts, applying the maxim delegatus non potest delegare ,
will hold that the recipient of delegated legislative power cannot validly
sub-delegate any part of its rule-making power to another in the absence
84
of express statutory authorization . But a power vested in a Minister or a
Department to make regulations can validly be exercised by an official
authorised by his superiors to act in that behalf this is not an example of
;

78. Customs and Excise Commissioners Cure & Deeley Ltd [1962J 1 Q.B. 340
v.

(per Sachs J.). See to like effect, JReadeSmith [1959J N.Z.L.R. 996. cf. however.
v.

Marsh {Wholesale) Ltd v. Customs and Excise Commissioners [1970] 2 Q.B. 206.
» 22 above; Hallet and Carey' s case (note 77); Secretary oj State for
79. See note
Employment v. ASLEF {No. 2) [1972] 2 Q.B. 455.
80. Kruse v. Johnson [1898] 2 Q.B. 91 at 99-100.
81. McEldowney v. Forde [1971] A.C. 632 at 643, 645, 653, 665.
82. For example, by authorizing the condemnation of a person without allowing him
an opportunity of being heard on his own behalf {R. v. Housing Appeal Tribunal [1920]
3 K.B. 334) or by taking away his common-law right of access to the courts: Chester
v. Bateson ; Cure & Deeley' s case (above).
83. See note 81 above.
84. There are Commonwealth authorities directly in point. See also Jackson ,
Stansfield & Sons v. Butterworth [1948] 2 All E.R. 558 at 564-6, and p. 575.

340 Parliament and Legislation

 sub-delegation, for the official. is the Minister’s other self, his alter ego. 85
In the past a great deal of heat was generated by statutory provisions
purporting to oust judicial review of the validity of regulations, orders
and administrative decisions and determinations. 86 The formula providing
that a regulation or order, when made, was to have effect ‘as if enacted in
the Act’, has fallen into desuetude. Whether the courts regarded it as
excluding them from determining the vires of a subordinate instrument
was never entirely clear. 87 A provision that the making or confirmation
of an order was to be ‘conclusive evidence’ that the requirements of the
Act had been complied with was probably effective to exclude judicial
review, 88 despite the traditional disfavour shown by the courts to language
ostensibly depriving them of their inherent supervisory jurisdiction.
Exclusionary formulae create a bad impression and are seldom used today
unless finality is all-important.
The Extradition Act 1870 and the House of Commons (Redistribution
of Seats) Acts still have provisions to the effect that Orders in Council
made thereunder shall not be questioned in any legal proceedings; the
subject-matter of such Orders (application of an extradition treaty to a
foreign State, and the determination of constituency boundaries) may
justify the exclusion of judicial review. 89 Similar formulae purporting to
protect judicial-type administrative determinations against judicial review
are made nugatory (with certain exceptions) by section 14 of the Tribunals
and Inquiries Act 1971, contained in Acts passed before August 1958. 90
if

In the present climate of opinion, one would not expect to see delegated
legislation afforded special statutory protection save in highly exceptional
As we have seen, Orders in Council and regulations made
circumstances.
under the European Communities Act 1972 for the fulfil-
in this country
ment of Community obligations enjoy extraordinary protection inasmuch
91
as they are assimilated for most purposes to Acts of Parliament.

85. R. v. Skinner [1968] 2 Q.B. 700.

86. See generally de Smith, Judicial Review of Administrative Action (3rd edn), ch. 7.
87. Institute oj Patent Agents v. Lockwood [1894] A.C. 347 supported the view that
such a provision barred judicial review; Minister oj Health v. R., ex p. Yaffe [1931]
A.C. 494 indicated that it did not. Various intermediate positions are possible.
88. Ex p. Ringer (1909) 73 J.P. 436.
89. Extradition Act 1870, s. 5; House of Commons (Redistribution of Seats) Act
1949. s. 3(7). See also Parliament Act 1911, s. 3; Parliament Act 1949, s. 2(2) (Speaker’s
certificates); West Indies Act 1967, s. 18. Judicial review of subordinate legislation
is not excluded merely because provision has been made by the parent Act for the

affirmative or negative resolution procedure (R. v. Electricity Commissioners [1924]

1 K.B. 171), but judicial intervention while an instrument was still before either
House might be regarded as an encroachment on parliamentary privilege.
90. See further pp. 553, 557-9.
91. See p. 328. But, as was indicated, jurisdiction to determine the vire$ of such
instruments is not entirely excluded. Sec also p. 337.

Subordinate Legislation 341

Part Four
Justice, Police
and Local Government

In this Part we shall examine aspects of three important subjects, which

shade off into one another.
chapter 1 6 we consider some features of the administration of
First, in
justice inEngland. For detailed accounts of the structure and working of
the English legal system, readers should consult textbooks devoted to the
subject; here we have presented only an outline sketch. In chapter 16 we
also touch upon magistrates, juries and the legal profession;' and we look
inmore detail at the rules of law and convention, professional traditions
and political practices, that help to sustain the independence of the
Judiciary. This is a convenient place for considering the law of contempt
of court. We also draw attention to the roles of Ministers (including the
Attorney-General) and the Director of Public Prosecutions in the
administration of justice. Every one of these topics is of constitutional
interest and distinguishes the English system from a gieat many other
legal systems.
Secondly, we single out, in chapter 17, some features of the
constitutional status of the police, the oflicers directly responsible for
enforcement of the criminal law and the maintenance of the Queen’s
peace. We shall discuss certain of their powers and duties more fully in
chapters 20-22.
The status of a police officer is anomalous in some respects he is an
:

instrument of the executive branch of government, in others a local

officer, and in others an independent public officer, but he cannot be

fitted neatly into any category. Control over the police is partly a matter
for the Home Office, partly for local police authorities, but a chief
constable of a local force enjoys a very substantial measure of personal
autonomy and authority. Public duties are cast on him by law to secure
the due enforcement of law and order within his area of command; but the
means of compelling him to perform those duties are still unclear. The
chapter ends with a comment on the thorny problem of investigating
complaints against police officers and of the fresh provision made for this
by the Police Act 1976.
‘Police’ is often listed among local government services, though local
control over the conduct of a force may be tenuous. Chapter 18 is in the
nature of an essay on local government law. Books on this specialized
subject are available for consultation, and this chapter does not attempt
whole field. But the books are now
to offer a detailed synopsis of the
having to go into new editions, for after years of informed debate
far-reaching changes in the structure and functions of local government
in England and Wales have been prescribed by the Local Government
Act 1972. Elections to the new county and district councils took place in
1973, and the new system has been in full operation since April 1974.

344 Justice, Police and Local Government

Chapter 16
The Administration
of Justice

Courts 1
Criminaljurisdiction

The most striking feature of the English legal system is the part played
by the layman, as justice of the peace, as juror or as prosecutor. It is
open to an aggrieved member of the public to lay an information before a
magistrate asking him to issue a summons, or in some cases an arrest
warrant, against another person for a criminal offence (for example,
assault). In practicemost of these members of the public are police
officers, 2 but purely private prosecutions are not uncommon. For some
serious offences (for example, against the Official Secrets Acts) the Attor-
ney-General’s leave must be obtained before a prosecution can be insti-
tuted. There are other offences for which only the Director of Public
Prosecutions, or only a local authority, may prosecute.
Apart from the issue of summonses and warrants, the chief functions
of magistrates are the trial of summary offences, and the conduct of
preliminary inquiries into indictable offences which are triable by a
higher court. 3 Magistrates may be either lay justices of the peace - the
office originated over six hundred years ago - or professional stipendiary
magistrates. There are some 22,000 active justices of the peace in England
and Wales, sitting in over a thousand magistrates’ courts, but just over fifty
stipendiaries, of whom all but a dozen are metropolitan magistrates sitting
in the London area. There are no juries in magistrates’ courts; in trying

1. The leading work is R. M. Jackson’s Machinery of Justice in England (6th edn,

1972). For recent critical surveys, see Brian Abel-Smith and Robert Stevens, Lawyers
and the Courts (1967); In Search of Justice (1968); Michael Zander, Lawyers and the
Public Interest (1968); The Judiciary (A Report by a subcommittee of Justice , 1972);
Report of the Royal Commission on Assizes and Quarter Sessions (Cmnd 4153 (1969)) -
the Beeching Report. Only a brief outline of the system in England and Wales is
offered in this chapter. Some important questions, like the cost of litigation and the
award of costs, are omitted.
2. For the position in Scotland, see p. 370, note 3.
3. Thisan oversimplification - for example, some indictable offences (triable at
is

the Crown Court; are triable by a magistrates’ court. See Jackson, op. cit., pp. 127-
30.

The Administration of Justice 345

offences, magistrates are judges of law and fact and impose sentence.
Metropolitan stipendiary magistrates always sit alone to hear summary
cases; other stipendiaries usually sit unaccompanied by lay justices; the
size of a lay bench will be between two and seven, under a chairman
elected by the magistrates. Magistrates must normally sit in open court,
but when they sit as examining justices conducting a preliminary inquiry
to determine whether there is sufficient evidence to commit a defendant
for trial before a higher court, the evidence given at these proceedings
cannot now be reported contemporaneously except at the defendant’s
request, unless the magistrates discharge him. 4
On conviction, magistrates cannot, in general, impose a sentence of
more than six months’ imprisonment or a fine of more than £400; they
may, however, commit an offender for sentence at the Crown Court if
the offence is one punishable by a heavier sentence and their own powers
are inadequate to meet the case. They may also remand defendants in
custody; in certain circumstances they may make recommendations for
deportation upon conviction; they may bind over a defendant by re-
quiring him to enter into recognizances, with or without sureties, to be of
good behaviour or to keep the peace, and send him to prison if he refuses. 5
These are formidable powers to vest in amateurs 6 whose knowledge of
legal technicalities and techniques may be rudimentary. The picture is
not in fact quite as alarming as it may appear. Magistrates are advised
on points of law and procedure by a clerk of the court, who is normally a
full-time officer and who is usually legally qualified. All newly appointed

justices are obliged to undergo a course of preliminary training; they are

encouraged to attend refresher courses and conferences; they are kept in-
formed by advisory Home Office circulars about sentencing policies and
problems and other developments on the treatment of offenders. They are
empowered to impose suspended sentences. 7 The infirm and incompetent
can be placed on a supplemental list where they will be ineligible to per-
form judicial functions. In any event, magistrates are now retired or placed
4. Criminal Justice Act 1967, ss. 3, 6. But in certain circumstances the committal
proceedings may be based on written depositions (ss. 1, 2).
5. This is really a form of preventive justice. Other alternatives after a case has been

proved include absolute discharge, conditional discharge, community service orders

and putting on probation: Powers of Criminal Courts Act 1973. For young offenders,
a different set of sanctions or welfare orders is prescribed; see Children and Young
Persons Act 1969; J. E. Hall Williams, The English Penal System in Transition (1970),
Parts 4-6.
6. The ‘great unpaid* are now paid travelling and subsistence allowances and sums
for loss of earnings: Justices of the PeaceAct 1949, as amended; see Administration
of Justice Act 1973, ss. 5, 20 and Schedule I, Part III.
7. Powers of Criminal Courts Act 1973, ss. 22-7. If the offender is convicted again

during the period of suspension he may have to serve the original sentence.

346 Justice, Police and Local Government

on the supplemental list at seventy. There are about 6500 magistrates on
the supplemental list. Except in the City of London, the ex officio magis-
8
trate has almost disappeared. There is no adequate means of assessing the
quality of criminal justice dispensed by lay magistrates, but the asperity of
criticism formerly levelled against them has been softened in the last
twenty years and there is a dearth of enthusiasm for the professional magis-
trate sitting alone.
Young offenders and young persons in need of care and protection,
are normally brought before juvenile courts, differently constituted from
ordinary magistrates’ courts and following a less formal procedure. They
9
are composed predominantly of lay magistrates.
Fundamental changes in the system of criminal courts were introduced
by the Courts Act 1971, which came into force on 1 January 1972. 10 The
reforms were based on the Report of the Beeching Commission on Assizes
and Quarter Sessions. 11
The Crown Court, which replaced other criminal courts, the most im-
portant of which were Assizes and Quarter Sessions, is part of the Supreme
Court of Judicature. It consists of High Court judges. Circuit judges, part-
time Recorders and, in certain circumstances, justices of the peace. All
county court judges have become Circuit judges; so have the full-time
criminal judges at the Old Bailey and
Manchester and Liverpool, and
in
There are also some fifty
certain other holders of full-time judicial offices.
new judges in this category, drawn to a considerable extent from persons
with judicial experience as Recorders. There are 285 Circuit judges. The
new-style Recorders (about 340) are required to sit for twenty days a year
in the Crown Court. They must be barristers or solicitors of at least ten
years’ standing; a large majority are in fact barristers. But the qualification
for appointment as a Circuit judge is to be a barrister of ten years’ standing
or to have been a Recorder for five years; it is therefore possible for a
solicitorof at least fifteen years’ standing to become a Circuit judge.
Magistrates must be members of the Crown Court when it hears appeals
from magistrates’ courts or juvenile courts or committals for sentence
from those courts; and they can be asked to sit with a Circuit judge or
Recorder in other cases.
The Crown Court is organized in six circuits. Each of these circuits is
presided over by two judges of the Queen’s Bench Division, apart from
8. See Justices of the Peace Act 1968, ss. 1, 2.
9. See J. D. McCIean and J. C. Wood, Criminal Justice and the Treatment of Offenders ,

ch. 5, and note 5 above. The emphasis has recently shifted from criminal responsibility
and sanctions towards civil responsibility and remedial orders.
10. Jackson, op. cit., ch. 3. See also Crown Court Rules 1971 (S.I. 1971, No. 1292);
Practice Directions (Crime: Crown Court Business) [1971] 1 W.L.R. 1555, 176?
11. Cmnd 4153 (1909).

The Administration of Justice 347

the South-Eastern Circuit where the Lord Chief Justice presides with two
Queen’s Bench judges. Each circuit has a senior court administrator. The
Court sits in twenty-four main provincial centres, staffed by High Court
judges and Circuit judges. Here the High Court judge will wear two hats.
Sitting in the High Court , he will hear civil cases; sitting in the Crown
Court , he will hear the most serious criminal cases. But there is flexibility:
the very serious criminal cases can be assigned to a Circuit judge, and a
Circuit judge can also hear certain High Court civil cases. There is a
second tier of centres, served by High Court and Circuit judges, where
only criminal cases are heard. Then there is a third tier, staffed by Circuit
judges only. The first tier centres bear a very loose resemblance to the old
assizes, thesecond and third tiers to quarter sessions, but the new system
isnot typified by continuity with the past. The number of major centres
for the administration of criminal justice outside London has been
reduced from 234 to 113.
Offences are divided into four classes. Indictable offences in the first
class must be tried by a High Court judge; in the second class they must be
tried by a High Court judge unless the judge presiding over a circuit
may be tried by a
releases a case to another judge; in the third class they
High Court judge or Circuit judge or Recorder. The fourth class of offence
(triable summarily or on indictment) will normally be tried by a Circuit
judge or Recorder. There are detailed rules directing or guiding magistrates
as to the class of centre to which a particular case should be committed.
All trials on indictment are by jury, as they were at assizes and quarter
sessions.
Juries are now selected more or less at random from among registered

electors between the ages of eighteen and sixty-five who have resided for
12
five years or more in the British Islands since childhood.
The jury is
perhaps the most venerated English legal institution, lauded as a bulwark
agairist oppression and the common-sense voice of twelve ordinary
13
citizens. But uneasiness about the merits of jury trial has grown of
late,

12. See generally Juries Acts 1949, 1954 and 1974.

The Criminal Justice Act 1972,
Juries Act 1974, had
the relevant provisions of which are now incorporated in the
altered the age limits, disqualifications and exemptions,
and substituted voters’
qualification for ratepayers*. Jurors are now paid travelling and
subsistence allowances
is com-
and compensation for loss of earnings. Subject to certain exceptions, service
pulsory. Grand juries (interposed between committal by examining justices and trial
(selected from
at assizes or quarter sessions) were abolished in 1933. Special juries
City of London com-
persons of means in civil cases) disappeared in 1949 except for
mercial cases and under the Courts Act they were abolished altogether. Juries are still
used in coroners’ courts.
13. See Glanville Williams, The Proof of Guilt
(3rd edn); Jackson, op. cit., pp.
Report,
389-408; W. R. Cornish, The Jury; Criminal Law Revision Committee, 11th
Evidence ( General ), Cmnd 4991 (1972).

348 Justice, Police and Local Government

though some of the doubts cannot be reliably substantiated. In civil cases
trial by jury is now rare - hardly 30 cases a year. In criminal cases the
accuracy of findings by juries and the processes by which they are reached
are not infrequently questioned. Bribery and intimidation of jurors are
thought to be extremely uncommon; nevertheless, because this problem
arose in trials involving members of London gangs, the rule that a jury’s
verdict in criminal proceedings had to be unanimous was varied in 1967;
a majority verdict may be now accepted by the court if ten jurors agree
14
that the accused is guilty. In civil cases majority verdicts are acceptable
with the consent of the parties, and without their consent subject to safe-
guards similar to those laid down in criminal proceedings. 15
The system of appeals in criminal cases is complicated: 16
1. A person convicted by a magistrates’ court can appeal to the Crown

Court on a question of law, fact or sentence; the appeal is by way of re-

hearing without a jury; a sentence may be increased.

2. Alternatively, either the prosecutor or the defendant may appeal on

a point of law by case stated 17 from a conviction by a magistrates’ court,
or a determination by the Crown Court on appeal or a committal for
sentence , to a Divisional Court of the Queen’s Bench Division, consisting
of two or more (usually three and occasionally five) judges of that D» v uiOii
of the High Court. This course is followed where an authoritative legal
ruling is sought.

3. From the Divisional Court, a further appeal on a point of law will lie
direct to the House of Lords, but only with leave, which is not to be
granted unless the Divisional Court certifies that a point of law of general
public importance is involved, and that court or the House of Lords is

of the opinion that it should be considered by the House.

4. Fromconvictions at quarter sessions or assizes on trials on indictment,
there was no regular system of appeal till 1907, when the Court of Criminal
Appeal was established. In practice this court was composed of judges of
the Queen’s (King’s) Bench Division. In 1966 the court was abolished,
and its appellate jurisdiction (including jurisdictton to hear appeals from
the Central Criminal Court, Crown courts, and appeals against sentences

14. Criminal Justice Act 1967, s. 13. If there are only ten jurors -the normal size
of a jury is eleven or twelve - nine must concur in the finding of guilt. The court must
not accept a majority verdict unless the jury has deliberated for at least two hours.
15. Courts Act 1971, s. 39.
16. It is depicted diagrammatically by Jackson, op. cit., p. 153. Part of this branch
of the law was consolidated in the Criminal Appeal Act 1968. It was modified by the
Courts Act 1971.
17. The clerk of the court draws up a statement of the facts found and the basis of
the decision, and this is signed by the magistrates.

The Administration of Justice 349

imposed by quarter sessions on committal by magistrates’ courts after
conviction) was transferred to the Criminal Division of the Court of
Appeal, subject to various restrictive conditions. 18 Now appeals lie from
the Crown Court instead. The Criminal Division sits in at least two courts,
composed partly of Lords Justices of Appeal and partly of Queen’s Bench
judges. If new relevant evidence is received by the court, it has a dis-
cretion to order the appellant to be retried. 19
5. A further appeal on a point of law will lie from the Court of Appeal
to the House of Lords, subject to similar conditions to those in paragraph 3
above.

Ancillary points, not directly linked with appeals, need to be men-

tioned. First, the Home Secretary may refer the whole of a case after a
conviction on indictment to the Court of Appeal; the effect is much as if

the person convicted had lodged an appeal. Secondly, he may refer any
aspect of such a case to the Court of Appeal for their opinion. 20 Thirdly,
he may advise the Queen to exercise the prerogative of pardon. Fourthly,
a prisoner may now be released on licence on the recommendation of the
Parole Board (and in certain cases merely on the recommendation of a
local review committee) after serving a third of his sentence. 21 Fifthly, the
Attorney-General may refer to the Court of Appeal a point of law arising
out of an acquittal in a trial on indictment. 22 Sixthly, determinations by
magistrates’ courts and the Crown Court are subject to review by the
Divisional Court of the Queen’s Bench Division exercising its supervisory
jurisdiction - quash a conviction
for example, an order of certiorari to
(other than a conviction by the Crown Court in a trial on indictment) can
be obtained if the court has exceeded its jurisdiction or broken the rules
of natural justice. 23 Seventhly, a person deprived of his liberty without
lawful authority may procure his release by the award of a writ of habeas
corpus. 24 *

For example, leave of the court below is required for an appeal on a question of
18.
fact,and leave of the Court of Appeal if an appeal is to be lodged against sentence. The
Court of Appeal cannot increase the total period of sentence already imposed.
19. Criminal Appeal Act 1968, ss. 7, 8, 23.
20. ibid., s. 17.
21. Criminal Justice Act 1967, ss. 59-64; Schedule 2; Hall Williams, op. cit., pp.
184-90; Criminal Justice Act 1972, s. 35.
22. Criminal Justice Act 1972, s. 36. Whatever be the opinion of the court, the
acquittal will still stand.
23. See ch. 27.
24. Seepp. 452-6.

350 Justice, Police and Local Government

 Civiljurisdiction

Many justiciable claims and controversies in non-criminal matters

are
determined by bodies other than the ordinai*y courts - by special statutory
tribunals, or local authorities, or Ministers (through departmental
officials), or named classes of officials, or domestic tribunals
(com-
mittees of clubs, trades unions and so on). Businessmen often provide in
their commercial contracts that disputes shall be submitted to arbitration.
Of late there have been experiments in establishing informal small claims
courts. There are also specialized courts, such as the Restrictive Practices
Court, outside the mainstream of the ordinary judicial system. But in
almost all cases the general superior courts preserve an appellate or a
supervisory jurisdiction.
Magistrates’ courts have a limited civil jurisdiction. They have power to

make affiliation and maintenance and separation orders and

orders,
decisions as to custody of children in matrimonial cases; appeal on points
of law lies to a Divisional Court of the Family Division of the High Court.
They also have various functions in the general field of administrative law,
particularly in respect of licensing and the hearing of appeals against local
authority licensing decisions; appeal usually lies to the Crown Court,
with a further (or alternative) appeal by case stated on points of law to the
Divisional Court of the Queen’s Bench Division.
Since the passing of the Courts Act 1971 all county court judges have
become Circuit judges, but continue with their civil jurisdiction. There
never has been any necessary connection between a county court area and
an administrative or geographical county. Circuit (or county court) judges
are full-time judges. They hear undefended divorce petitions, but their
main function has been to determine small monetary claims. To an in-
creasing extent judicial functions in minor county court cases have been
devolved upon registrars, who are solicitors. In practice most of the nearly
two million cases that come before county courts each year are un-
defended; these are mainly plaints issued in respect of debts.
Their monetary jurisdiction in contract and tort has been progressively
raised; in 1977 the maximum claim they could entertain was for £1000.
They also exercise a miscellany of functions in the fields of equity, bank-
ruptcy, and landlord and tenant (notably applications for possession
orders), and a wide range of jurisdiction, mainly original but sometimes
appellate, arising under modern collectivist legislation. Appeals lie, nor-
mally on points of law only, to the Court of Appeal (Civil Division).
The Supreme Court of Judicature consists of the Court of Appeal, the
High Court and the Crown Court. The Court of Appeal has two divisions,
civil and criminal: it is presided over by the Master of the Rolls, and has

The Administration of Justice 351

up to sixteen Lords Justices of Appeal; the Lord Chancellor, ex-Lord
Chancellors, the Lords of Appeal in Ordinary, the Lord Chief Justice, the
Vice-Chancellor and the President of the Family Division are ex officio
members. It normally sits with a bench of three; the Lord Chief Justice
presides in one court of the Criminal Division; other High Court Judges
are often called upon to sit to hear criminal appeals, but less frequently
to hear civil appeals. Appeals on the civil side lie mainly from county
courts and the High Court; under a fairly recent amendment of the law,
the court may be leapfrogged and an appeal raising a point of law of excep-
tional difficulty or importance calling for a reconsideration of a binding
precedent may, with leave of the House of Lords, lie direct from the
25
High Court to the Lords. ,

The High Court sits in three divisions the Queen’s Bench, the Chancery,
:

and the Family Divisions. The Family Division replaced the Probate,
26
Divorce and Admiralty Division (‘the court of wrecks’) in October 1971.
On appointment, a judge is assigned to one of the three divisions. The
Lord Chief Justice presides in the Queen’s Bench Division; the Lord
Chancellor, who never sits, is nominally president of the Chancery
Division and there is now a Vice-Chancellor who is a Chancery judge;
there is a President of the Family Division. The maximum number of
27
other High Court judges (called puisne judges) is seventy-five. There are
forty-five in the Queen’s Bench, eleven in the Chancery and seventeen
in

the Family Division. The original civil jurisdiction of the High Court is
unlimited as to amount and persons but subject to territorial limitations.
Distribution of work between the three divisions is governed partly by
by rules of court, partly by custom, and there is a substantial
statute, partly
claiming injunctions
area of concurrent jurisdiction; for example, actions
declarations are usually brought in the Chancery Division but can be
or
instituted in the Queen’s Bench Division or even the Family Division. The
in relation to
High Court also has appellate and supervisory jurisdiction
normally exercised by a Divisional Court
inferior tribunals, a jurisdiction
28
Queen’s Bench Division, and power to issue writs of habeas corpus.
of the
the Royal Courts of
The High Court, like the Court of Appeal, sits in

Justice (the Courts) in London, and also (as we have seen) juxtaposed
Law
Administration of Justice Act 1969, ss. 12-16. A certificate
must first Be given by
25.
judge, and the parties must consent to the
leapfrogging appeal. For an illus-
the trial

tration, see Ealing L.B.C. v. Race

Relations Board [19721 A.C.342.
26. Administration of Justice Act 1970.
The Admiralty work of the dissolved
Division and contested probate juris-
Division was transferred to the Queen’s Bench
Commercial Court
Chancery Division. The Admiralty Court and the
diction to the
became Queen’s Bench
distinct courts within the
Division.

Maximum Number of Judges Order 1970 (S.l. 1970, No. 1115).

27.
28. See pp. 583-6.

352 Justice, Police and Local Government

with the Crown Court at the top-tier provincial centres. There Queen’s
29
Bench judges sit as Crown Court judges for criminal cases too.
The House of Lords as a ‘final’ appellate court has already been men-
1
tioned. 30 in 1966 it rcasscitcd power to overrule its own decisions.-

Independence of the Judiciary

It is clearlyof great importance that justice be dispensed even-handedly

in the courts and that the general public feel confidence in the integrity
and impartiality of the Judiciary. Where the Government of the day has
an interest in the outcome of judicial proceedings, the court should not
act merely as a mouthpiece of the Executive. The Judiciary must therefore
be secure from undue influence and autonomous within its own field.
These propositions may seem platitudinous. But in many countries
some of them would be rejected. Whereas all governments would agree
that there should be public confidence in the administration of justice,
and that judges ought not to accept bribes or decide cases on the basis of
personal friendship or animosity, many would not agree that the Judiciary
ought to be independent of the Executive. On the contrary, they would
say that the judges have a duty not to be impartial between the people
and the enemies of the people; that since the Government (or the Party)
is the voice of the people, critics of the regime or bourgeois elements or

other classes of persons stigmatized as anti-social must be dealt with

severely by the courts, which are instruments of State policy. And judges
who talk out of turn or acquit persons charged with sedition or refuse to
join the Party or (as the case may be) fail to uphold and apply the edicts
of the military regimemay be dismissed.
In other countries, the principles of judicial independence are
many
acknowledged but are substantially qualified in practice. This is hardly
surprising when one considers the implications that can be and have been
read into the concept. Does judicial independence imply that the Executive
must have no voice, or a muted voice, in the appointment or promotion
of judges? Does it imply that neither the Executive nor the Legislature
shall be competent to remove judges? If the principle carries these impli-
cations - and it is arguable that it should import them - it is imperfectly

realized in Britain. Does it imply that judges should be entirely aloof

from public sentiment and always disregard the strength of local feeling
on an issue before them? If not, to what extent should judges take into
account considerations of public policy, and how far can the Government

29. See pp. 347-8.

30. pp. 299-300 and above. But see pp. 662-3 on the European Court of Justice.

31. Practice Statement [1966J 1 W.L.R. 1234.

The Administration of Justice 353

or its unruly supporters or opponents be permitted to determine what is

the public interest? In Britain these questions seldom arise in an acutely

controversial form , 32 but judges not infrequently have to determine what
is in the public interest, or whether a transaction is contrary to public
policy, or whether it is necessary to impose a deterrent sentence because of
the prevalence of a social evil; and in coming to such decisions they are
expected to have some regard to the general sense of the community and
not to rely merely on idiosyncratic opinions. Moreover, in some political
34
contexts the courts allow the Executive 33 or the House of Commons the
first and last word. Here we are enmeshed in the thicket of questions of

degree, where generalizations are not very helpful.

Can we not at least agree that the protection of judicial independence
in a liberal democracy demands that it should be unconstitutional for the
Legislature to invade the domain of the Judiciary by pronouncing judg-
ment (as in a bill of attainder) 35 or reversing a judicial decision with
retroactive effect , 36 or enabling the Executive to designate which judges
shall sit to hear a particular case , 37 or abolishing a judicial office while it

has a substantive holder 38 or reducing judicial salaries ? 39 In Britain such

,

measures would generally be regarded, in the absence of extraordinary

circumstances, as unconstitutional in the sense of being contrary to
constitutional convention. But in a number of Commonwealth countries

32. Though cf. the controversies which arose in 1972 out of the application of the
Industrial Relations Act 1971 (since repd). See, for example,
John Griffith, ‘Reflections
on the Rule of the Law*, New Statesman 24 November 1972, for sharp criticism;
,

Churchman v. Joint Shop Stewards' Committee [1972] 1 W. L. R. 1094; and see pp.
365-6, on the Official Solicitor. When in 1975 a High Court judge ordered the fees of
counsel and solicitors in a case before him to be reduced because of their conduct of
the case, his decision was reversed by the Court of Appeal R. v. McFadden The Times
:
, ,

11 December 1975. But, undeterred, the judge called an unprecedented press conference
and wrote to The Times. A motion was tabled in the Commons to remove him, but no
debate ensued and the matter lapsed.
33. See, for example. Chandler v. D.P.P. [1964] A.C. 763; and other cases cited
above, pp. 127-9.
34. See, for example, the Sheriff of Middlesex's case (1840) 11 A. & E. 273 ; Bradlaugh
v. Gossett (1884) 12 Q.B.D. 271.
35. See Liyanage v. R. [1967] 1 A.C. 259 (Ceylon); though cf. Kariapper v. Wijesinha
[1968] A.C. 717; Australian Communist Party v. Commonwealth of Australia (1951)
83 C.L.R. 1.
36. cf. Burmah Oil Co.
v. Lord Advocate [1965] A.C. 75: War Damage Act 1965.
Liyanage (1963) 64 New L.R. 313 (Ceylon); see Thomas M. Franck,
37. R. v.
Comparative Constitutional Process, pp. 384-98. The court held that this power, was
one properly reposed only in members of the Judicature.
38. See, for example. Constitution of Jamaica (S.I. 1952, No. 1550, Sched. 2),
s. 97 (3).

39. For example. Constitution of India, art. 124(2), proviso.

354 Justice, Police and Local Government

 And in some
they would be not only ‘unconstitutional’ but also invalid.
Commonwealth would also be unconstitutional to impair the
countries it

independence of the Judiciary by endowing them with functions ex-

traneous to the judicial, 40 or to purport to oust the jurisdiction of the
courts to decide the constitutionality of legislative or executive action. 41
In Britain the independence of the Judiciary rests not on formal con-
stitutional guarantees and prohibitions but on an admixture of statutory
and common-law rules, constitutional conventions and parliamentary
practice, fortified by professional tradition and public opinion.

Appointment

Appointments of High Court and Circuit judges. Recorders, and stipen-

diary and lay magistrates are made either by or on the advice of the Lord
Chancellor. Since the Lord Chancellor is himself a political appointee
and a member of the Cabinet, there appears to be ample scope for political
patronage. Appointments to the Court of Appeal and to the Home* of
Lords, and to the offices of Lord Chief Justice and President of the Family
Division, are made on the advice of the Prime Minister after consultation
with the Lord Chancellor. In a number of new Commonwealth countries
judicial appointments other than Chief Justice are made on the advice
of a Judicial Service Commission, presided over by the Chief Justice and
composed mainly of judicial members. In practice appointments in
England and Wales are no longer made on political grounds, except to the
lay magistracy. Justices of the peace are appointed by the Lord Chancellor
on the recommendation of local advisory committees whose membership
is not, in general, publicly disclosed. In a circular to advisory committees
in 1966, the then Lord Chancellor made it clear that political affiliations
ought not to be disregarded because it was important that ‘justices should
be drawn from all sections of the community and should represent all
shades of opinion’. 42
Before 1914 it was quite common for M.P.s belonging to the party in
43
office to be appointed to the High Court. During the past thirty years
hardly any judicial appointment in England appears to have been in-

40. Att.-Gen. for Australia v. R. and the Boilermakers' Society of Australasia [1957]
A.C. 288.
For example, Balewa v. Doherty [1963] 1 W.L.R. 949 (P.C., Nigeria).
41.
Quoted Jackson, op. cit., p. 217. In the counties the chairman of the advisory
42.
committee is the Lord Lieutenant; in districts the chairman is appointed by the Lord
Chancellor. The main political parties will be represented on the committee. See
Richards [1961] Public Law 134.
43. See generally, H. J. Laski, Studies in Law and Politics , pp. 168-80.

The Administration of Justice 355

 44
fiuenced by political considerations. Professional standing at the bar
and personal suitability are ostensibly the sole criteria. The Lord Chan-
cellor is likely to consult theLord Chief Justice, the Master of the Rolls,
the Vice-Chancellor and the President of the Family Division before
submitting a recommendation. Not long ago the Attorney-General was
understood to have the first refusal of a vacancy in the office of Lord
Chief Justice. In 1922 Lord Hewart, then Attorney-General, was appointed;
in 1940 he was succeeded by Lord Caldecote, formerly Attorney-General
and at the time Lord Chancellor. But in 1946 Caldecote was succeeded by
Lord Goddard, a Law Lord who was far from being a Labour sympa-
45
thizer and in 1958 Lord Parker, a Lord Justice of Appeal, assumed the
office. In 1971 Lord Parker was succeeded by Lord Widgery, also a Lord

Justice of Appeal. There is no reason, however, why the Law Officers of

the Crown, and other barristers in politics, should not be eligible for
appointment to high judicial office, provided that they possess the appro-
priate qualities of character, temperament and intellect. Political affili-
ations may nevertheless operate as a disqualification inasmuch as an active
proponent of revolution may be regarded as unsuitable to occupy what is
in one aspect a high office of State.
A lawyer seeking appointment as a Recorder or professional magistrate
should make the fact known to the Lord Chancellor’s Department;
candidates for such appointments are not easily identified. As we have
seen, solicitors as well as barristers are eligible for these appointments,
and a solicitor may become a Circuit judge after five years’ service as a
Recorder. Solicitors also exercise judicial functions as Masters of the
Supreme Court, county court registrars and chairmen of special tribunals.
46
But at present full-time judgeships are reserved for members of the bar.
This exclusiveness has had certain advantages. Members of the bar alone
47
have had the right of audience in the superior courts ; they rub shoulders
out of court with the judges, who remain members of their Inns; the bar
1

is an autonomous, individualistic but

tightly knit profession, maintaining

extraordinarily high standards of professional conduct, partly,

perhaps,

because the number of barristers in private practice in England

and

44. This comment does not apply to Scottish judicial

appointments. See Willock
(1969) 14 Juridical Review (N.S.) 193.
45. Vispount Jowitt, Lord Chancellor under the Attlee
Governments (1945-51), went
pains not to afford any ground for suspicion that appointments to high
to great
judicial office were politically influenced.
standing and
46. High Court puisne judges must be barristers of at least ten years*
standing (except that
other superior judges must be barristers of at least fifteen years’
office for two years).
the Law Lords may alternatively have held high judicial
47. Solicitors have a right of audience in county courts,
and limited rights of audience
in the Crown Court (Practice Directions [ 1972] 1 W.L.R*

356 Justice, Police and Local Government.

Wales under three thousand. Recent developments, and in par-
is still

ticular the growth in the size of the Judiciary, portend an erosion of

exclusiveness. One class of lawyer, the full-time academic lawyer, is still in
practice excluded from serious consideration for appointment to a superior
judgeship. On this matter there are real difficulties to Qvercome. It would
be a risk to appoint a person with little experience of advocacy to be a
judge of first instance. To appoint him to the Court of Appeal or the
House of Lords might evoke serious resentment among the puisne judges.

Promotion
In Britain the Judiciary is not a career service. Tn many countries a young
man will join the judicial service, starting at the bottom and working his
way upwards through the hierarchy. Such a system may tend to inhibit
forthright independent-mindedness, particularly ifpromotion is deter-
mined by a Minister of Justice 48 . But in Britain appointments to the
High Court are made from the ranks of successful practitioners 49 pro- ;

fessional magistrates are not promoted to the High Court, and promotions
of county court judges have been rare 50 advancement from the High
;

Court to the Court of Appeal may be gratifying, but it carries little

increase in salary 51 appointment to the House of Lords means a relatively
;

small increment in salary though by some a peerage is highly valued. There

is no great material inducement to encourage a member of the Judiciary

to curry favour with the politicians or his judicial superiors; any attempt
to procure advancement by such means would bring a judge into disfavour.
Moreover, a Prime Minister or Lord Chancellor has little incentive to take
political considerations into account when recommending promotion or,
indeed, the initial appointment of a judge. Matters might be different if we
had a written constitution with entrenched guarantees and prohibitions
subject to judicial interpretation, especially if it were difficult to procure
constitutional amendments overturning the effect of inconvenient decisions.

48. In Commonwealth countries where there is a Judicial Service Commission,

promotion is a matter for the Commission. This system may induce a different kind
of deference.
49. For their social background, see Henry Cecil, The English Judge (1972 edn),
ch. 1.

50. Promotions of Circuit judges to be High Court judges may well become more
common in future. At the present time there are indications of hierarchical tendencies
a* the lower end of the scale - for example, a magistrates’ clerk* may become a pro-
fessional magistrate and then a deputy Circuit judge or Circuit judge.
51. Every new Lord Justice is, however, made a Privy Councillor.

The Administration of Justice 357

Salaries

Judicial salaries and pensions are substantial by international standards.

A puisne judge of the High Court is paid £18,675 a year, 52 charged on the
Consolidated Fund. Salaries may be increased, but not reduced, by the
Lord Chancellor with the consent of the Minister for the Civil Service.
After fifteen years’ service a judge can retire on a pension equal to half his
salary. 53 Practitioners are often earning more in fees than a judicial salary
when appointed to the bench, but a judgeship affords not only great
dignity but financial security. 54
The Act of Settlement 1701 had provided that judges’ salaries were to
be ‘ascertained and established’. Till well into the eighteenth century
judicial salaries were nevertheless low. Judicial incomes were supple-
mented by fees from suitors and other sources, sundry perquisites of
office and the exercise of patronage. 55 These standing temptations to
corruption - which had been all the greater so long as judicial salaries
had to be met out of the King’s privy purse; 56 under the Stuarts they
were often in arrears - were finally removed by an Act of 1826 which
raised the salaries of superior judges to £5000 and abolished their income
from fees.

Rules tending to protect judicial independence

Insulation from politics. First, full-time judges are disqualified from

membership of the House of Commons. 57 Secondly by convention judges
must refrain from politically partisan activities; and although they can
criticize the wording and content of legislation and the conduct of members
of the Executive, they should be careful not to take sides in matters of

52. Administration of Justice Act 1973, s. 9(1). Lords Justices of Appeal receive
£19,425. The Lord Chief Justice is £23,050, and that of the Master of
salary of the
the Rolls and the Lords of Appeal in Ordinary is £21,175. The President of the Family
Division is paid £20,175.
53. Administration of Justice Act 1973, s. 1 1 Schedule 4.
;

54. In 1970 a High Court judge resigned and became a member of a firm of mer-
chant bankers; his decision aroused some professional criticism.
55. See generally W. S. Holdsworth, History of English Law, vol. 1, pp. 252-5.
56. For this reason William III had refused his assent in 1692 to a bilk to increase
judicial salaries to £1000: Sir Kenneth Roberts-Wray, Commonwealth and Colonial
Law , pp. 485-6.
57. House of Commons Disqualification Act 1975, ss. 1(1) (a), 1(2); First Schedule.
The disqualification of part-time
Recorders for election in those constituencies where
they exercised jurisdiction was repealed by the Courts Act 1971, Sched. 11, and, it
would seem (despite the general words of Schedule 8 to that Act) not replaced. For
Law Lords in the upper House, see ch. 13. The last judge (other than the Lord
Chancellor) to hold Cabinet office was Lord Ellenborougb, Chief Justice of the King’s
Bench, in 1806.

358 Justice, Police and Local Government

 political controversy - a precept more easily formulated than followed 58
,

for ostensibly non-political matters of public concern are apt to

become
party issues unexpectedly. Third, by convention members of the Executive
are expected to preserve a reciprocal restraint when commenting on
the
words and deeds of judges, though if criticized by a judge they are not
obliged to remain mute, and if a judge makes politically controversia
remarks a robust answer can be offered. Fourthly, in parliamentary
practice members of the House of Commons are not permitted to cast
aspersions on the conduct of a judge at question time, or in the course of
debate except on a motion specifically criticizing the judge or supporting
an address for his removal; and in general a matter cannot be raised in
59
Parliament if it is sub judice . Fifthly, the courts disclaim jurisdiction to
inquire into proceedings in Parliament 60
. Sixthly, the charging of judicial
on the Consolidated Fund means that since Parliament does not
salaries
authorize them annually, there is no adequate opportunity to censure
judges in the debates on the estimates.
Some hold the view that the independence of the Judiciary may be
prejudiced if judges are entrusted with functions alien to the judicial; or
if provision is made for courts to give advisory opinions to the Executive
on questions of law. The former view does not seem to be generally
accepted by the present generation of English judges; they sit in the
Restrictive Practices Court and sat in the National Industrial Relations
Court during its brief life from 1971 to 1974, and they accept appointments
as chairmen of inquiries into alleged public scandals, major industrial dis-
putes, third London airports and other politically contentious matters;
they conceive these functions to be aspects of their duty towards the
61
State. There are various objections to the advisory judicial opinion, but
they have only a tenuous connection with judicial involvement in executive
policy. The fact that the Stuarts used judges as advisers
and brought undue
pressure to bear on them in private consultation
does not imply that a
publicly delivered advisory opinion on a specific question of law would
prejudice judicial impartiality today. 62
Judicial immunities in legal proceedings. According to the majority in a

58. It tends to be followed more rigorously in England than in Scotland.

59. For an exception introduced in 1972, see p. 283.
60. See pp. 304-5, 307-8, 315-19.
61. For a helpful catalogue and critique, see Zellick [1972] Public Law 1. See also
Wade and Phillips, Constitutional Law (8th edn), pp. 327-8.
62. Advisory opinions may be obtained from the Judicial Committee of the Privy
Council under section 4 of the Judicial Committee Act 1833; see p. 143; see also
Criminal Justice Act 1972, s. 36 (p. 350). In Canada advisory opinions on the consti-
tutionality of legislation
have frequently been delivered by the courts. The International
Court of Justice has also given several advisory opinions.

The Administration of Justice 359

recent Court of Appeal case 63 every judge of the superior and inferior
courts - including magistrates - is entitled to protection from liability in
damages for anything done while acting judicially. As long as he acts under
the honest belief that his conduct was within his jurisdiction, he is pro-
tected even though a mistake of law or fact led him outside his juris-
64
diction. While acting within their jurisdiction, members of other tribunals
65
closely resembling courts enjoy a similar immunity in respect of defama-
tory words, but a right of action may possibly lie against such officers for
66
malicious acts, and will lie done outside their jurisdiction
for tortious acts
where jurisdiction has been exceeded because of an error of law or an un-
67
reasonable mistake of fact.
Judicial immunities from suit are conferred not for the benefit of
judges but for the benefit of the administration of justice. The risk that a
judge may abuse his privilege by making gratuitously defamatory remarks
for reasons of personal rancour is considered to be less than the risk of
his abstaining for reasons of prudence from condemning iniquity in
appropriate language. In the public interest, absolute privilege also
-

attaches to words used by the parties, counsel and witnesses in the course
68
of judicial proceedings. Nor can jurors be punished for their verdict. 69
There may be circumstances in which a judge wrongfully declining to
hear a case within his jurisdiction will incur civil liability to a person
70
aggrieved. Under the Habeas Corpus Act 1679 a judge wrongfully (and
presumably wilfully) refusing to issue a writ of habeas corpus is liable to a
penalty of £500 recoverable by the prisoner.

63: Sirros v. Moore and others [1975] Q.B. 118.

64. But see the judgment of Buckley L.J. at 140.
65. See, for example, Addis v. Crocker [ 1961] 1 Q.B. 11 (Disciplinary Committee of the
Law Society). The courts have, in general, refused to hold members of administrative
tribunals to be protected by absolute privilege; they enjoy qualified privilege which is
destroyed by proof of malice.
66. See, on this difficult topic, Everett v. Griffiths [1921] 1 A.C. 631; O'Connor v.
Isaacs [1956] 2 Q.B. 288; Justices’ Protection Act 1848, s. 1; Amnon Rubinstein,
Jurisdiction and Illegality , pp. 128-33; Sheridan (1951) 14 Mod.L. Rev. 267 Thompson;

(1958)21 Mod. L. Rev. 517.

67. Houlden v. Smith (1850) 14 Q.B. 841; Palmer v. Crone [1927] 1 K.B. 804. Even
before Sirros v. Moore and others (above note 63), a magistrate who had had to pay
damages or costs in respect of proceedings instituted against him in the purported
exercise of his duties was entitled to be indemnified out of public funds provided that
he had acted reasonably and in good faith: Administration of Justice Act 1964, s. 27.
68. Neither a barrister nor (it seems) a solicitor can be sued for negligence in respect
of his conduct of a client’s case as an advocate: Rondel v. Worsley [1969] 1 A.C. 191.
Solicitors are liable for professional negligence in other contexts, and it may well be
that barristers are liable for negligence in respect of opinions.
69. Bushell's case (1670) Vaugh. 135.
70. See Ferguson v. Earl Kinnoull (1842) 2 Cl. & F. 251

360 Justice, Police and Local Government

 The general rules of judicial immunity do not extend to giving a judge
or magistrate an open licence to be corrupt or oppressive. Corruption
would be a ground for prosecution. Oppressive conduct would result in
the removal of a magistrate, and the same fate might befall an oppressive
71
judge .

Contempt of court? 1 Disobedience to a court order is a civil contempt,

punishable in the discretion of the court by imprisonment. This rule has
nothing to do with judicial independence. Criminal contempts fall into
three main categories. First, there are contempts in the face of the court -
for example, the interruption of a High Court libel action by a group of
Welsh Nationalist student demonstrators 73 or a wilful refusal by a witness
,

74
to answer questions put to him Secondly, there is conduct tending to
.

prejudice a fair trial - for example, where proceedings are pending (or,
apparently, imminent), publishing newspaper comment or broadcasting a
television programme tending to show that a person not yet convicted
75
(but charged or about to be charged) is in fact guilty or disclosing a
,

party’s past convictions; or putting pressure on witnesses to alter their

evidence or not to give evidence, or commenting publicly on the merits of
the case in such a way as to induce a party to settle the proceedings instead
of pursuing his case ; 76 or publishing the names of witnesses in a blackmail
77
trial contrary to the judge’s direction or otherwise potentially influenc-
;

ing the court or the jury by revelations or comments on the proceedings.

71. See pp. 362-4.

72. See G. J. Borne and N. V. Lowe, The Law of Contempt (1973), C. J. Miller,
Contempt of Court (1975). See further the Phillimore Report on Contempt of Court,
Cmnd 5794 (1975).
73. Morris v. Crown Office [1970] 2 Q.B. 114 (power of judges to sentence sum-
marily); Balogh v. St Albans Crown Court [1975] Q.B. 73 (power of judges to sentence
summarily; a gross interference with the course of justice in a case tried or about to
be tried can be punished either by the judge who had seen the contempt or by a judge
in another court to whom it had been reported: the jurisdiction is not limited only to
contempt committed ‘in the face of the court’).
74. Including refusal in proceedings before a formal judicial tribunal of inquiry:
Mt.-Gen. v. Clough [1963] 1 Q.B. 773; Att.-Gen. v. Mulholland [ 1963] 2 Q.B. 477

(journalists refusing to disclose sources of information).

75. R . v. Samndranayagan [1968] 1 W.L.R. 1761 at 1764-5 (‘Trial by television is
not to be tolerated in a civilized society’, per Salmon L.J. at 1765).
76. See, on the latter point, Att.-Gen. v. Times Newspapers Ltd [1974] A.C. 273;
cf. Att.-Gen. v. London Weekend Television Ltd [1973] 1 W.L.R. 202 (the thalidomide
cases). It is hard to decide from their Lordships’ speeches in Att.-Gen v. Times News-
.

papers Ltd how far it is proper to attempt to influence a litigant before the attempt
becomes ‘improper’, prejudicial to a fair trial and thus a contempt, cf. the Phillimore
Report, op. cit., paras. 5-7.
77. R. v. Socialist Worker Printers and Publishers Ltd ex. p. Att.-Gen. [1975] Q.B.
,

637.

The Administration of Justice 361

In so far as the rule precludes ‘prejudicial’ comment on a civil action tried
by a judge without a jury, it has been relaxed. Thirdly, there is conduct
scandalizing the court by scurrilous criticism or imputations of partiality. 78
The limits of permissible criticism have been extended by the courts them-
selves in recent years. In a case reported in 1936, the Judicial Committee,
allowing an appeal against a conviction and fine imposed on the author of
a newspaper article criticizing sentences imposed by local judges, held that
members of the public were immune provided that they refrained from
imputing improper motives to the judges and were not actuated by malice.
‘Justice must not be a cloistered virtue; she must be allowed to suffer the
scrutiny and respectful, even the outspoken, comments of ordinary men.’ 79
Today, even disrespectful comments will not necessarily be construed as
contempts of court. In a case decided in 1968, 80 the Court of Appeal
declined to hold that an article by a Q.C. (soon to be Lord Chancellor) in
Punch embodying robust, jocular and inaccurate denunciations of
,

judgments by the court, was a contempt. Lord Denning M.R. said that the
court would ‘never use this jurisdiction as a means to uphold our dignity.
We do not fear criticism, nor do we resent it.* Salmon L.J. said that ‘no
criticism of a judge, however vigorous, can amount to contempt of court,
providing it keeps within the limits of courtesy and good faith’. 81 Judges
may adopt differing standards, but the tendency is to show more indul-
gence towards outspoken criticism alleging ignorance of the law or
excessive harshness or leniency in sentencing.
An appeal against conviction lies to a higher court. It is a defence that
the publisher or disseminator of a contempt had taken reasonable care
and had no reason to suspect that proceedings were pending or that the
material was prejudicial to a fair trial as the case may be. 82

Security offudicial tenure

Before 1688 judges generally held office during the King’s pleasure. When
they incurred his displeasure they were apt to be summarily dismissed.
After the ‘Glorious Revolution’ of 1688 all superior judges were ap-
pointed during good behaviour. The Act of Settlement 1701 placed the
terms of appointment on a statutory basis: judges’ commissions- were to be
made quamdiu se, bene gesserint [as long as they behave themselves], ‘but
78. McLeod v. St Aubyn [1899] A.C. 549; R. v. Gray [1900] 2 Q.B. 36; R. v. Editor
of the New Statesman (1928) 44 T.L.R. 301.
79. Ambard v. and Tobago [1936] A.C. 322 at 335.
Att.-Gen. for Trinidad
80. R. v. Metropolitan Police Commissioner ex p. Blackburn {No. 2) [1968] 2 Q.B. 150.
,

81. At 155.
82. Administration of Justice Act 1960, ss. 11-13; Smith and Hogan, Criminal Law
(3rd edn), pp. 600-608 ; the defences have been criticized as being too narrow.

362 Justice, Police and Local Government

upon the address of both Houses of Parliament it shall be lawful to remove
them’. This has often been understood to mean that a judge is irremovable
except for misbehaviour, in pursuance of an address submitted to the
Crown by both Houses praying for his removal on that ground. However,
the better interpretation of the Act, and of modern Acts replacing it with
wording, 83 is that a judge is in strict law removable by the
slightly different
Crown misbehaviour or on any other ground in pursuance of a
either for
parliamentary address. 84 Misbehaviour would include conviction for an
offence involving moral turpitude, and persistent neglect of duties; it does
not appear to cover mental infirmity. Removal from an office held during
good behaviour has traditionally been effected by proceedings com-
menced by a writ of scire facias Probably this procedure still survives; 85
.

it would seem that alternatively the Attorney-General could move for an

injunction in the High Court to restrain the judge from continuing to act
in an office to which he was no longer entitled, but the judge would have
to be given prior notice and a fair opportunity to be heard before being
removed. 86
In practice no judge is likely to be removed except upon a parliamentary
address based on the judge’s misbehaviour. Only one judge has in fact
been so removed since the Act of Settlement - Sir Jonah Barrington, an
Irish judge, in 1830.
87
A
few other addresses were moved unsuccessfully
in the nineteenth century; the judges were permitted to defend themselves
and be represented by counsel. 88 But the strictly legal safeguards of
security of tenure are weak. The dearth of parliamentary aduresseo L
attributable to the self-restraint of politicians and the circumspection
89
maintained by the Judiciary. It would be more satisfactory to introduce
a new procedure whereby a judge would be removable either for mental or

83. Supreme Court of Judicature (Consolidation) Act 1925, s. 12(1) (tenure ‘during
good behaviour, subject to’ a power of removal by the Crown upon an address by
both Houses); Appellate Jurisdiction Act 1876, s. 6 (Lords of Appeal in Ordinary).
84. See the discussion in Sir Kenneth Roberts- Wray, Commonwealth and Colonial
Law , pp. 486-90.
85. Despite the wording of the First Schedule to the Crown Proceedings Act 1947
the repeal of the writ may of Crown debts.
refer only to its use for the recovery
86. In accordance with the rules of natural justice: see authorities quoted in Ridge v.
Baldwin [1964] A.C. 40.
87. Half-hearted attempts to remove the President of the National Industrial
Relations Court never reached the stage of putting down a motion, cf. note 32.
88. See Alpheus Todd, Parliamentary Government in England vol. 2, pp. 726-44, for
,

particulars of the nineteenth-century cases.

89. From time to time senior judges have doubtless persuaded their aberrant or
nfirm brethren to resign. In 1969 a superior judge was fined for being in charge of a
car while under the influence of alcohol; he did not resign and no further action was
taken.

The Administration of Justice 363

physical incapacity or misbehaviour in pursuance of the report of a
judicial tribunal of inquiry, and on no other ground. Such a procedure
has been incorporated in a number of Commonwealth constitutions since
90
1957. Under the Administration of Justice Act 1973 the Lord Chancellor
has been empowered to declare vacant (with the concurrence of senior
judges) the office of a superior judge who is subject to permanent medical
incapacity and is unable to tender his resignation (section 12).
Till December 1959 tenure during good behaviour was tantamount to life
91
tenure. Superior judges appointed since then must retire at seventy-five.
Circuit judges and Recorders are removable by the Lord Chancellor for
92
incapacity or misbehaviour; they have an implied right to be heard on
93
their own behalf. The normal age for compulsory retirement of a Circuit
judge is seventy-two.
Magistrates have no legal security of tenure, but they may be placed
on the supplemental list for infirmity or non-judicial behaviour or re-
moved altogether from the commission of the peace. Provision has now
been made for both lay and stipendiary magistrates to be placed on the
94
supplemental list or retired at seventy.

The executive and the administration of justice

There is no Minister of Justice in England. Executive responsibilities in

relation to the administration of justice are distributed among several

Ministers - the Lord Chancellor, the Home

Secretary, and the Law
Officers of the Crown and the Solicitor-General for
(the Attorney-General
England and Wales). The Scottish Law Officers are the Lord Advocate
Scotland
and the Solicitor-General for Scotland; the Secretary of State for
Scottish legal system, which
also has responsibility for aspects of the
differs in many ways from the English.

constitutional change
90. Roberts-Wray, op. cit., pp. 490-501. In -Nigeria in 1963 a
removal on parliamentary addresses for the judicial tribunal of inquiry
substituted
Judiciary’s security of tenure and
procedure, presumably in order to diminish the
independence of political pressure.
91. Judicial Pensions Act 1959, s. 2.
92. Courts Act 1971, ss. 17(4), 21(6). The
Lord Chancellor is directed to satisfy him-
recommending a person for appointment as a Circuit judge that that person s
self before
health is satisfactory (s. 16(4)).
with the conditions of his
A Recorder may also be removed for failure to comply
appointment as to requirements to officiate (s. 21(3), (6)).
He will be appointed for
but not beyond the age of seventy-two.
a fixed term, which may be renewed
93. Ex p. Ramshay (1852) 18 Q.B. 173. ahq71 c-)
Administration of Justice Act 1973, s. 2.
94. Justices of the Peace Act 1968, s. 2;

364 Justice, Police and Local Government

 The Lord Chancellor’s duties 95 are multifarious, demanding the utmost
delicacy and an extensive familiarity with lawyers and the law. As we
have seen, he is head of the Judiciary, a Cabinet Minister and Speaker of
the House of Lords. He seldom sits as a judge, but is responsible for
arranging who shall sit to hear cases in the House of Lords and the
Judicial Committee of the Privy Council. Many of his functions in relation
to judicial appointments have been mentioned, but there are others; thus
he appoints Chancery Masters, the senior Master of the Queen’s Bench
Division, judges’ clerks, county court registrars and the legally qualified
chairmen of certain statutory tribunals. He is chairman of the com-
mittees that make rules of procedure for the Supreme Court 96 and the
Crown Court and appoints the members of the corresponding body for
county courts. To an increasing extent he has assumed responsibilities
for matters connected with the administration of criminal justice. It was
he, not the Home Secretary, who was the progenitor of the Courts A:t
1971, and it is he who appoints the officials of the Crown Court, He is
also the Minister responsible for law reform on the civil side. In this
context by far the most important advisory body is the Law Commission, 97
composed of a High Court judge as chairman and full-time Commissioners
appointed by the Lord Chancellor. The Commission has a small but
highly qualified research staff, and parliamentary counsel are attached to
it as draftsmen. Before the Commission issues a formal report with firm

proposals, it will hold extensive consultations, perhaps produce a pre-

liminary working paper, meet with a specialist advisory committee and
invite comments from representative bodies of lawyers and individuals.
In the course of ten years the Commission produced detailed schemes
ranging from divorce law reform to codification of the criminal law and
statute law revision, and its reports have strengthened the position of
the Lord Chancellor, jostling with his ministerial colleagues for places in
the legislative queue. Several bills emanating from the Law Commission
have been passed as private members’ bills. Part-time bodies advisory to
the Lord Chancellor include the Law Reform Committee (constituted in
1934 as the Law Revision Committee) and the Committee on Private
International Law. Again, he appoints the members of the Council on

95. They are summarized V. Heuston, Lives of the Lord Chancellors 1885-
in R. F.
1940, Introduction. See also Jackson, op.cit., p. 535. Doubts as to whether a Roman

Catholic may hold the office have been removed in favour of adherents of that faith:
Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions) Act
1974.
96. cf. Bates v. Lord Hailsham of St Marylebone [1972] 1 W.L.R. 1373.
97. See Law Commissions Act 1965. There is a separate Law Commission for
Scotland. The Commissions have also made reports on criminal law reforms.

The Administration of Justice 365

Tribunals 98 which has various supervisory, consultative and advisory
functions with regard to statutory tribunals and inquiries; the Council
makes reports to him. He exercises a general superintendence over the
legal aid and advice scheme in civil matters for persons of modest means;
the scheme is administered by the Law Society, the governing body of
solicitors. 99 Administrative responsibility for the legal aid scheme in
criminal matters is vested mainly in the Home Secretary; decisions to
100
grant legal aid orders are made by the criminal courts themselves. If
the Lord Chancellor has not enough to occupy his time, he can make
speeches for the Government in the House of Lords or address his
mind to his extensive ecclesiastical patronage or his responsibilities for
the Land Registry and the Public Record Office.
Another function of the Lord Chancellor is to appoint the Official
Solicitor to the Supreme Court and to give him general directions as to
the performance of his duties. Among the multifarious duties performed
by the Official Solicitor as a ‘general sweeper-up of messes’ 101 is repre-
sentation of infants, mental patients and persons committed for contempt
of court, particularly if they are unrepresented in forthcoming judicial
proceedings. In 1972 he emerged from anonymity to arrange for unofficial
dock-strike leaders to appeal against an order committing them to prison
for contempt of the National Industrial Relations Court. 102
The Home Secretary is in effect the Minister of the Interior, though he
also has responsibilities for Westminster’s relations with the Channel
Islands and the Isle of Man. 103 Some of with regard
his responsibilities
to law and order have only a tenuous connection with the administration
of justice - for example, implementing (or not implementing) the reports
of constituency boundary commissions; superintending the machinery
for the conduct of elections;
„ immigration, deportation, extradition,
naturalization and the general regulation of aliens and Commonwealth
immigrants control of firearms, poisons and dangerous drugs. The Director
;

General of the Security Services is personally answerable to him. Other

functions impinge on the administration of justice; he is the police auth-
104
ority for the Metropolitan Police and supervises local police forces;

98. See ch. 25.

99. For a short account of the scheme, see Jackson, op. cit., pp. 435-54; see
Legal Aid Act 1974.
100. Legal Aid Act 1974, Part II. See further Jackson, op. cit., pp. 174-90; R. v.
Derby JJ., ex p. Kooner [1971] 1 Q.B. 147 (implied duty of magistrates to provide
counsel in committal proceedings for murder).
101. The then Official Solicitor’s own description (1966) 63 Law Society's Gazette
at 338.
102. Churchman v. Joint Shop Stewards' Committee [1972] 1 W.L.R. 1094; note 32.
103. And for Northern Ireland affairs till 1972; see p. 632.
104. See ch. 17.

366 Justice, Police and Local Government

he is generally responsible for the penal system and the treatment of
offenders, and looks after prisons, other custodial establishments and the
probation service; he has administrative responsibilities for magistrates’
courts and the general working of the system of lay magistrates (though
the Lord Chancellor and local magistrates’ courts committees discharge
important functions in this field) and some responsibilities for legal aid.
It is he who advises the Queen on the exercise of the prerogative of mercy.

He is broadly responsible for not only the administration but also the
reform of the criminal law, and is advised by a Criminal Law Revision
Committee.
The Attorney-General 105 is the principal legal adviser to government

Departments. He appears in court on their behalf in important cases, and

gives them formal and informal opinions on difficult questions of law out
of court. Reference has already been made to his important role in scru-
tinizing drafts of bills; he is also a valuable member of committees on
bills. These functions, and some of his other responsibilities 106 are dis-
,

chargeable by the Solicitor-General (who is not a solicitor). The Law

Officers, though members of the Government, do not now have seats in
the Cabinet.
The Attorney-General has a number of non-political functions. As
guardian of the public interest, he may institute civil proceedings in the
High Court for the vindication of public rights - for example, to restrain
a local authority from exceeding its powers, or a private individual from
perpetrating repeated breaches of by-laws or other minor criminal offences.
He may take such proceedings on his own initiative or at the request of
other persons or bodies lacking a sufficient personal interest to sue on
their behalf; he has an absolute discretion whether to proceed 107 Again, .

he appears as an independent officer of State before judicial tribunals of

inquiry. His role in criminal proceedings is of special constitutional
importance. He can select the place of trial on indictment 108 He can enter .

a nolle prosequi to stop any of an indictable offence. His leave is

trial

required before certain classes of criminal proceedings (for example, for

breaches of the Official Secrets Acts) can be instituted. He can institute
criminal proceedings, or instruct the Director of Public Prosecutions to

105. For the fullest account, see J. LI. J. Edwards, The Law Officers of the Crown .

106. See Law Officers Act 1944.

107. See generally de Smith, Judicial Review of Administrative Action (3rd edn),
ch. 9 and Appx 3. Me Whir ter v. Independent Broadcasting Authority
In Att.-Gen. ex rel .

[1973] Q.B. 629 the Court of Appeal was of the opinion that in highly exceptional cir-
cumstances (for example, if the Attorney-General refused on manifestly improper
grounds to proceed) a member of the public might be entitled to sue in his own name.
108. He can also determine the venue in civil cases involving the Crown.

The Administration of Justice 367

 take over a private prosecution and offer no evidence if
a nolle prosequi
cannot be entered or if it is preferable not to go through
the formality of
entering a nolle prosequi These discretionary powers
.
are probably un-
challengeable in any court, 109 and they could be abused
to serve party
political purposes. But in performing these functions
he is obliged by
convention to exercise an independent discretion, not dictated
by his
Government, though he is at liberty to (and sometimes
colleagues in the
should) consult them and obtain their views in a case with
political
implications. In 1970 the Attorney-General’s decision (taken
after he had
consulted the Secretary of State for Foreign and Commonwealth
Affairs)
to prosecute journalists under section 2 of the Official Secrets Act
1911 for
publication of a confidential official memorandum about the
Nigerian
civil war aroused a great deal of criticism, but there is
no reason for
supposing that he acted otherwise than according to his own independent
judgment. 110 In 1924 the circumstances in which the Attorney-General
was suspected of having yielded to Cabinet pressure in withdrawing a
prosecution for sedition led to a successful vote of censure on the Govern-
ment and its downfall. 111 He is politically answerable for, and can give
directions to, the Director of Public Prosecutions, 112 an official appointed
by the Home Secretary but with his own Department. The Director of
Public Prosecutions himself instructs counsel and solicitors to conduct
prosecutions in cases referred to him by Departments and in other serious
or important cases (in some of which he alone is entitled to prosecute, or
proceedings cannot be undertaken except with his leave), and can take
over prosecutions from private persons. He undertakes about three
thousand prosecutions a year. He also advises the police at their request
whether there is sufficient evidence to justify a prosecution. 113 His advice,
though not binding, carries great weight.
In a number of newlyself-governing Commonwealth countries with
politicallyappointed Attorney-Generals, the Director of Public Pros-
ecutions is given judicial security of tenure by the constitution and is
vested with an exclusive independent responsibility for decisions to take
over, continue or discontinue prosecutions. Where he decides to institute

109. See R. v. Allen (1862) 1 B. & S. 850 on the prerogative power to enter a nolle

prosequi, Bernard Dickens, (1972) 35 Mod. L. Rev. 347, suggestingThat in some

cf.

contexts his discretion may not be unlimited. And see p. 593 below.
110. See p. 472. The Franks Committee on Section 2 of the 1911 Act recommended
(Cmnd 5104 (1972)) that discretion as to the institution of prosecutions in this class of
case should rest with the Attorney-General.
Ill Edwards, op. cit., chs 10 and 11; Wilson, Cases and Materials , 2nd edn, pp.
514-19.
112. S.R. & O. 1946, No. 1467 (S.R. & O. and S.I. Revised to 1948, v, 329), r. 5.

113. The office was set up in 1878. See further Edwards, op. cit., chs. 16 and 17.

368 Justice, Police and Local Government

criminal proceedings himself, the constitution will piovidc thct he shall
not act under the direction of any other person. This constitutional
114 -
device - and there are others designed to produce a similar effect
emphasizes both the importance attached to the maintenance of public
confidence in the process of prosecution and the precarious delicacy of
the balance achieved by habits of political self-restraint in Britain. It is
not too much to say that in Britain the independence of the Judiciary and
the impartiality of the administration of criminal justice are maintained
in spite of the strictly legal powers vested in Parliament and the Executive.

114. cf. Roberts-Wray, op. cit., pp. 354-5.

The Administration of Justice 369

Chapter 17
Police

Status 1 and functions

A police officer has often been likened to a citizen in uniform. In the first

place, every citizen has powers to arrest without warrant and to use
2
reasonable force in the prevention of crime the police are the specialists.
;

Secondly, for most offences it is open to any person .to institute a pros-
3
ecution; it so happens that prosecutors are usually policemen Thirdly,
.

a person unlawfully arrested by a police officer is not obliged to submit

tamely to restraint; he can use reasonable force to free himself. Fourthly,
police officers are not above the law, and if they exceed their powers and
duties they can be sued or prosecuted in the ordinary courts according
to the general principles of civil and criminal liability.
For a number of reasons this kind of analogy is not very helpful.
Police officers have powers of arrest, entry, search and seizure going far
beyond those of the ordinary citizen. If a police officer arrests the wrong
man, even if no criminal offence has been committed at all, the arrest is
not necessarily wrongful in the sense of being unlawful special defences
;

4
are available to the police Since police powers of arrest are both exten-
.

sive and obscure, discreet non-resistance may be the better part of valour;
the citizen can vindicate his rights (if any) after the event. Police powers
to prosecute for criminal offences may not differ significantly from those
of other persons; in practice, however, the exercise of police discretion
1. For a searching and unorthodox analysis, see Geoffrey Marshall, Police and
Government (1965). See, however, the judgments in the Court of Appeal in R v. .

Metropolitan Police Commissioner ex p. Blackburn [1968] 2 Q.B. 118.

,

2. Criminal Law Act 1967, ss. 2(2), (3), 3. See further ch. 20.
3. The use of police officers as regular procurators was criticized by the Royal
Commission on the Police (Cmnd 1782 (1962), para. 381). For detailed and cogent
criticisms see The Prosecution Process in England and Wales (Justice 1970), recom-
,

mending that general responsibility for prosecutions should be vested in a Department

of Public Prosecutions. In Scotland such responsibilities are vested in the Lord
Advocate (a Law Officer of the Crown); most prosecutions are launched by
Prosecutors-Fiscal, who are appointed by and responsible to him; the police cannot
initiate a prosecution, or indeed decide whether to prosecute. See also Dickens (1973)
22 LC.L.Q. 1.
4. See generally ch. 20; L. H. Leigh, Police Powers in England and Wales (1975).

370 Justice, Police and Local Government

 whether or not to prosecute can be of great importance 5 Again, the police .

have special common-law duties in connection with the maintenance of

law and order 6 and it is a statutory offence for anyone wilfully to obstruct
,

a constable in the execution of his duties 7 It is also a statutory offence to

.

waste the time of the police by knowingly making false reports that
8
require investigation . It is no part of a citizen’s duties to investigate
alleged crimes, take statements and interrogate suspects; but these are
duties of the police, partly regulated by a set of rules formulated by the
9
judges Police officers have, but the ordinary citizen has not, coercive
.

powers to regulate traffic, processions and the conduct of public meetings..

Members of a police force cannot become M.P.s 10 or indeed ‘take any
11
active part in politics ’. It is an offence to incite them to ‘disaffection ’; 12

they cannot join a trade union (though they belong to a statutory nego-
tiating body, the Police Federation ); 13 they are subject to a detailed
disciplinary code.

5.See A. F. Wilcox, The Decision to Prosecute (1972); and note 6.

6.cf Blackburn's case (above) where the court conceded that a chief constable had
discretionary powers in this field but emphasized that they were not absolute. In this
case the Commissioner had decided for the time being not to prosecute gaming clubs
for breaches of the Gaming Acts in the absence of special circumstances; held, that
thiswas a breach of legal duty owed to the general public, and potentially enforce-
able in an appropriate form of proceedings against the Commissioner. See further
Buckoke v. G.L.C. [1971] Ch. 655 (wide discretion of police not to prosecute fire
engine drivers ignoring red traffic signals); R. v. Metropolitan Police Commissioner ex ,

p. Blackburn (No. 3) [1973] Q.B. 241 (reasonable discretion conceded to police in

enforcing obscenity laws).
The police have a duty to protect persons and their property against reasonably
apprehended violence. In principle, therefore, a police authority cannot impose a
charge for supplying extra protection to persons in need of it. However, if ‘special*
protection is requested going beyond what is reasonably necessary in the circumstances,
a charge can be made by the police as a condition of supplying it: Police Act 1964, s. 15
(giving statutory effect to the rule laid down in Glasbrook Bros. Ltd v. Glamorgan C.C.
[1925] A.C. 270). Chief constables have a discretion in determining the ambit of their
duty in any given situation, but their opinion is not conclusive and the issue of financial
liability for ‘special’ protection is potentially justiciable. For the extra protection
provided to rugby clubs and associations against demonstrators during the Springbok
tour in 1969, the apportionment of financial responsibilities was negotiated and agreed
with the Home Secretary.
7. Police Act 1964, s. 51(3); pp. 448-50.
8. Criminal Law Act 1967, s. 5(2), replacing to this extent the judge-made offence
of public mischief: R. v. Manley [1933] 1 K.B. 529.
9. Practice Note (Judges’ Rules) [1964] 1 W.L.R. 152; p. 451.
10. House of Commons Disqualification Act 1975, s. 1.
11. Police (Discipline) Regulations 1968 (S.I. 1968, No. 26), Sched. 1, para. 1, r. 4.
12. Police Act 1964, s. 53.
13. ibid., ss. 44, 47. But the Home Secretary may authorize the Police Federation
to become associated with a body outside the police service: Police Act 1972, s. 1.

Police 371
 Constables are public officers. It is arguable that they are Crown ser-
14
vants. On appointment, a constable must declare that he will well and
truly serve the Queen. For certain purposes he is undoubtedly an officer
15
of the Crown; and the maintenance of law and order, the preservation
of the ‘Queen’s peace’, is pre-eminently a function of executive govern-

ment. Yet he lacks some of the elementary characteristics of a Crown

servant; and books on local government law list ‘police’ among the local
government services. A police officer is not paid directly out of central
government funds, and except in the Metropolitan area he is neither
appointed nor dismissible even indirectly by the Crown. He is appointed
and dismissible by the chief constable of a local police force (if he is below
the rank of assistant chief constable) and paid by the local police authority.
He is under the command of the chief constable, who is appointed by the
local authority and can be removed by that authority on prescribed
grounds. If a police officer commits a tort, such as assault or negligence,

in the purported exercise of his duties, vicarious liability attaches not to

the Crown 16 or the local authority
17
but to the chief constable, who is
18
entitled to be indemnified out of local police funds.
A chief constable is nobody’s servant but an independent officer upon

whom powers and duties are directly conferred by law for the benefit of
the populace. His constitutional status remains anomalous
19 and puzzling,
even after the re-organization of the police system implemented by the
Police Act 1964. It is still not clear whether anyone is entitled to give

what
him instructions as to the performance of any of his duties, or to
answerable for decisions taken by
extent the Home Secretary is politically
outside the Metropolis. The rank and file of a police
chief constables
force obviously do not enjoy a comparable degree of autonomy, but one
cannot identify any single person or body as their
employer (or master),
they can be regarded as ‘independent’ public
and for this reason still

officers rather than servants.

14. cf. W. S. Holdsworth’s discussion

of the constitutional position of the judges
concluded that they were not servants because of
’ ‘

((1932) 48 L.Q.R. 25) in which he

on this point, Lord Diplock’s dissenting
the connotation of dependence. See also,
Ranawecra v. Ramachandran [1970] A.C. 962 at
judgment in - u/ 7
Att.-Gen. for New South Wales v.
r ,

15. the review of authority and principle in

See
see also Fisher v. Oldham Corporation
Perpetual Trustee Co. [1955] A.C. 457; and
Secrets Acts a P ohce ,s a
[1930]' 2 K.B. 364. For the purpose of the Official
Crown: Lewis v. Cattle [1938] 2 K.B. 454.
And see
person holding office under the
Coomber v. Berks JJ. (1883) 9 App. Cas. 61.
16., See Crown Proceedings Act 1947, s. 2(6).
17’. Fisher v. Oldham Corporation (above;
wrongful arrest).

Act 1964, 48. There is a discretion to indemnify police

.
officers m other
,

18. Police s.

circumstances.
ex p. Blackburn [1968] 2 Q.B. 118
19, See R. v. Metropolitan Police Commissioner,
at 135-6, 138, 148-9.

372 Justice, Police and Local Government

 Organization and control

The absence of a national police force is explained partly by apprehensions

of central political control but mainly by the course of historical develop-
ment. 20 The medieval constable was a local officer, chosen by the repre-
sentatives of the township and the hundred; service was compulsory. After
the office of justice of the peace had been constituted, the local constable
gradually came under the control of the magistrate. As conservators of
the peace, magistrates still have special common-law duties, now largely
nominal, to secure the maintenance of the Queen’s peace in time of civil
commotion. From the days of Charles II, constables were parochial
officers, untrained, usually ignorant, often ineffectual. The organization
of professional disciplined police forces began at the end of the eighteenth
century. In 1829 the Metropolitan Police Force was created under the
direction of the Home Secretary, Sir Robert Peel. 21 The establishment of
borough police forces was made compulsory in 1835 and county forces in
1856. If the broad pattern of local organization were to be disrupted, this
would be construed as yet another blow at the principle of local govern-
ment. In 1962 a majority of members of the Royal Commission on the
Police opposed the idea of centralization, but recommended rationalization
and closer Home Office involvement in promoting coordination and
22
efficiency. Most of its recommendations were accepted.
The police authority for the Metropolitan Police District (which ex-
cludes the City of London with its unique system) 23 is the Home Secretary.
He recommends the appointment of the Commissioner who commands
the force, and Assistant Commissioners. He appears to have a general
power, exercised in practice with great restraint, to give directions to
the Commissioner as to the operational control of the Metropolitan
Police, and can be asked detailed questions in Parliament about the con-
duct of the force; but according to views expressed by the Court of Appeal
he cannot give directions to the Commissioner as to the institution of
prosecutions. 24 However, the special position of a police authority was
The leading single-volume work is now T. A. Critchley, A Historv of the Police
20.
in England and Wales 900-1966. See also F. W. Maitland, Justice and Poll*,*, C. K.
,

Allen, The Queen's Peace. For a monumental and highly readable survey, see L.
Radzinowicz, A History of English Criminal Law and its Administration from 1750
(4 vols.).
21. Hence the term ‘bobbies*.
22. Cmnd 1728 (1962). For comments on this Report see Jenifer Hart [19631 Public
Law 283; and on the Police Act 1964, D. E. Regan [1966] Public Law 13; D. W.
Pollard [1966] Public Law 35.
23. W.
O. Hart, Introduction to the Law oj Local Government and Administration
(9th edn), pp. 682-3.
24. Or according to the views expressed in the iudjzments in that case (/?. v.
Metropolitan Police Commissioner, ex p. Blackburn [1968] 2 Q.B. 118), other aspects

Police 373
illustrated in 1972 where Mr Reginald Maudling was impelled to resign
from the office of Home Secretary because the Special Branch of the
Metropolitan Police would be inquiring into the activities of one of his
former business associates. Over local forces the Home Secretary’s power
is indirect, was extended by the Police Act 1964. 25 Each local
though it

police authority outside London is composed in the same way two-thirds ;

of its members are local councillors and one-third lay magistrates. Com-
bined authorities constituted by amalgamations have the same proportions
of councillors and magistrates. Under the reformed local government
system, there are fewer combined authorities; police are a county respon-
sibility, subject to amalgamation, and most of the more populous new

counties correspond to police authority areas. The police authority ap-

points a chief constable, a deputy chief constable and assistant chief
constables, subject to the concurrence of the Home Secretary. A chief
constable must have had two years’ experience in another police force in
the rank of inspector or above. The authority may, with the Home Secre-
tary’s approval, retire a chief, deputy or assistant chief constable com-
pulsorily in the interests of efficiency. 26 The Home Secretary may also
require an authority to retire a chief constable on this ground, 27 in which
case he must appoint an independent, person to conduct an inquiry -into
any representations made by the officer concerned; where compulsory
retirement is imposed by a police authority he may cause such an inquiry

to be held; in any event the officer must be given adequate notice coupled
with a fair opportunity to be heard, according to natural justice. Senior
officers are also dismissible for a breach of disciplinary regulations, after a
hearing before an independent person ; an appeal lies to the Home Secre-

tary. The chief constable himself appoints and promotes other ranks and
28
is the disciplinary authority; disciplinary procedure is judicialized, and

the chief constable must not sit if he is in effect a party to the proceedings
29
or a witness; appeal again lies to the Home Secretary.
.
»
of law enforcement; sed quaere. The Director General of the Security Services is directly
answerable to the Home Secretary, and he also works in collaboration with the Special
Branch of the Metropolitan Police.
25. The Act is amended by the Local Government Act 1972, ss. 107, 196, 272,
Sched. 30.
26. Police Act 1964, ss. 5(4), 6(5). The officer must first be given an opportunity
to make representations on his own behalf cf. Ridge v. Baldwin [1964] A.C. 40, where
;

this right was inferred from his status as the holder of a public office.
27. Police Act 1964, s. 29.
28. He is also responsible for the appointment and dismissal of special constables
and police cadets.
29. See S.I. 1965, Nos. 543, 544, as amended; Police Act 1964, s. 33(3). Officers
below the rank of Assistant Chief Constable have no right to legal representation at
disciplinary proceedings: Maynard v. Osmond [1976] 3 W.L.R. 711, C.A.
,

374 Justice, Police and Local Government

 Operational control is vested in the chief constable. The police authority
is charged with the duty of securing the maintenance of an adequate and
Subject to Home Office regulations or approval,
efficient local police force.
30

responsible for determining the size and establishment of the force and
it is

providing and maintaining buildings, vehicles and equipment. It is entitled

to receive an annual report from the chief constable on the policing of the
area, and to request him to give other reports from time to time, but with
the Home Secretary’s concurrence he may decline to supply information
if its would be contrary to the public interest or unnecessary for
disclosure
31
the discharge of the authority’s functions. The scope of these exceptions
is as obscure as the scope of those functions. It can be inferred that the
authority may properly give the chief constable advice; it is doubtful
whether competent to give him any instructions outside the adminis-
it is
32
trative sphere, and it cannot instruct him whether or how to comply with
33
his duty to enforce the criminal law.
The powers of the Home Office now dwarf those of local police author-
34
ities. The Home Secretary’s powers in relation to senior appointments
and appeals have already been mentioned. In addition, he has and exer-
35
cises powers to make regulations on establishment, discipline, pay,
pensions, allowances, training, duties, leave, housing, uniforms and
equipment. He too is required to exercise his functions so as to promote
36
police efficiency. He has powers of inspection, withholding grants,
‘inquiry and compulsory amalgamation of forces; and he may call upon
chief constables to furnish him with reports on the policing of their
37
areas. There is a central inspectorate of police, with a Chief Inspector
of Constabulary who makes an annual report to him; the report is pub-
lished and laid before Parliament. The Home Office grant to local police
forces is 50 per cent of the net expenditure of the force, the other half

being raised by precepts on the local authorities within the police district.
The Home Secretary has a discretion to withhold a grant if dissatisfied
with the efficiency of a local force or with a proposed appointment to a
senior post; this power is no formality, and has been threatened or exer-
30. Police Act 1964, s. 4(1).
31. ibid., s. 12.
32. Councillors may put questions to a designated member of a police authority
as to the exercise of the authority’s functions (s. 11).

33. R. v. Metropolitan Police Commissioner , ex p. Blackburn [1968] 2 Q.B. 118 (duty

owed to members of the public).
34. See especially D. E. Regan [19661 Public Law 13.

35. See Police Regulations 1971 (S.I. 1971, No. 156) for the wide range of topics

covered.
36. Police Act 1964, s. 28.
37. ibid., s. 30. An annual report must be submitted. See generally Part II of the
Act.

Police 375
cised several times since 1945. He can impose a compulsory scheme for
amalgamation of forces by statutory instrument after holding a local
inquiry, if the local police authorities concerned fail to produce an accept-
able voluntary scheme; the number of separate forces was in fact sub-
stantially reduced after the Police Act 1964. He can conduct an ad hoc
independent inquiry into the conduct of a force. The only power of
importance not explicitly confided in him is to give directions to chief
constables as to the conduct of their forces, but the power of suasion is
reinforced by the other sanctions now available to him.
Both in strict law and in their practical operation, these go far beyond
the normal range of powers exercised by central government Departments
over local authorities and their officers. Moreover, the general power to
call for reports from chief constables means that parliamentary account-

ability of the Home Secretary for local police matters is potentially wide.
And must be stressed that under section 28 of the Police Act 1964 the
it

Secretary of State is placed under a duty so to use his enumerated powers

‘in such manner and to such extent as appears to him to be best calculated
to promote the efficiency of the police’. However, Home Secretaries still
take a restrictive view of their obligations to answer parliamentary
questions about law enforcement outside the Metropolis.

Complaints

The police in Britain have attached very great importance to the main-
tenance of friendly relations with the general public. For this purpose
they need the backing of the Home Secretary and local police authorities.
They will, moreover, go to considerable lengths to avoid the appearance
of partisan bias, to be approachable and generally to be at one with the
people, offering helpful advice, answering silly questions, diiecting passers-

by to their destinations, looking after lost children and generally taking

on a number of responsibilities cast on them neither by statute nor by
common law. Except in parts of Northern Ireland, the police have con-
trived on the whole to retain the confidence of the bulk of the local com-
munity. They have been least successful in their relations with younger
coloured immigrants.
38
But the self-restraint shown by the Metropolitan
Police in particular in dealing with disorderly demonstrators has been at
a notably higher level than that of their counterparts in many large cities
abrdad.
Nevertheless, complaints of unnecessary harshness and of malpractices
in conducting investigations and interrogations are not
uncommon and
38. See, for example, Police-Immigrant Relations a Report of the House of Commons
,

Select Committee on Race Relations and Immigration (H.C. 471—1 (1971-72)).

376 Justice, Police and Local Government

 are sometimes substantiated. Complaints by members of the public are
normally investigated not by an outside body but by the police them-
selves. 39 The chief constable of the local force must have every such
complaint recorded. Unless the complaint is already the subject of a
criminal prosecution or a disciplinary charge, an informal investigation
must be held. It may, and if the Home Secretary so directs must, be
conducted by an officer designated by the chief constable of another
40
force, and his report is made to the local chief constable. The local police
authority and the inspectors of constabulary must be kept informed of
the way in which such complaints are dealt with. If a report on an in-
vestigation indicates that a criminal offence may have been committed,
the chief constable must send the report to the Director of Public Pros-
ecutions. If a complaint results in a disciplinary hearing the complainant
is entitled to attend as an observer.
The process was not calculated to enhance public confidence. Police
resistance to fully independent investigation and review is understandable.
Complaints are often instigated by miscreants or persons with political
axes to grind, and many police officers naturally prefer the examination to
be carried out by one who is sympathetically aware of their own problems.
The only alternatives to an internal review used to be the ad hoc appoint-
ment of a Q.C. or another independent person to conduct a special in-
quiry, 41 or the sledge-hammer procedui e of a judicial tribunal of inquiry. 42
The Parliamentary Commissioner for Administration has no power to
investigate complaints against the individual members of police forces or
against local police authorities, and his jurisdiction to consider complaints
against the Home Secretary in respect of police affairs (for example, in the
Metropolitan Police District) has been construed as covering administra-
tive matters only. 43
The situation has been altered significantly by the Police Act 1976, which
should be in force by May 1977. This Act - the result of protracted

39. Police Act 1964, ss. 49, 50.

40. The practice of bringing in police officers from outside has increased: see 827
H.C. Deb. 652-4 December 1971). A special section to deal with complaints against
(2
the Metropolitan Police was set up at Scotland Yard in 1972.
41. For example, Cmnd
2526 (1964).
42. In pursuance of a resolution ol the two Houses under the Tribunals of Inquiry
(Evidence) Act 1921. See Cmnd 718 (1959) - the Thurso boy case.
43. Under Schedule 2 to the Parliamentary Commissioner Act 1967 complaints
against the Home Office can be entertained. Under paragraph 5 of Schedule 3 action
taken by or with the authority of the Secretary of State for the purpose of investi-
gating crime cannot be inquired into. See also section 5(2) of the Act, conditionally
barring investigation of complaints about maladministration in connection with
disciplinary^matters. Semble Home Office refusal to consent to a senior local appoint-
ment could be investigated on a complaint initiated by the person aggrieved.

Police 377
debate and of compromise between the police, the Home Office, those who
would have preferred entirely independent investigation of complaints, and
others - establishes a new Police Complaints Board. Not less than nine
members must be appointed by the Prime Minister, none of whom may be
or have been a policeman (section 1(2)).
When a chief officer of police receives the report of an investigation into
a compla'nt 44 he must send a copy to the Board together with a copy of the
complaint and a memorandum giving his opinion of its merits, together
with a statement as to whether he has preferred disciplinary charges (and
if so what they are) in respect of the complaint, or, if he has not, why he has
45
not. If no disciplinary charges have been preferred, the Board may, if they
disagree with that decision, recommend to the chief officer that they should
be; if he disagrees, the Board may direct him to do so and must give him
written reasons for that direction (section 3 (2), (3)). Alternatively, if the
chief officer has preferred charges without the Board’s intervention then
the Board may direct, if it considers it to be desirable by reason of any
exceptional circumstances of the case, that the hearing of the charges be
taken over by a disciplinary tribunal, consisting of the chief officer of police
as chairman and two members of the Board. If the accused is found guilty
(which may be by a majority) it is the chairman who decides on the punish-
ment ‘after consulting the other members of the tribunal’ (section 4
46
(I), ( 6)).

If a report of an investigation by the chief officer of police is sent to the

Director of Public Prosecutions, 47 he must decide whether criminal pro-
ceedings should be instituted before the Board may act. If a policeman is
charged with a criminal offence and is acquitted or convicted of it, he may
not be charged with a disciplinary offence which is in substance the same as
that criminal offence; but if the disciplinary charge itself consists in having
been found guilty of a crime, that provision does not apply (section 11).
This is to avoid the danger of accused policemen being put in double

jeopardy.
The Act pleases nobody. It remains to be seen what its effects will be on
police morale and whether it achieves the confidence of the public.

44. Under the Police Act 1964, s. 49.

45. Section 2(1). But the Board
not involved if an officer admits the disciplinary
is
offences or if the complaint withdrawn, but in the former case the Board is to be given
is

the chief officer’s report and details of the punishment imposed: s. 2(3).
46. Slightly different arrangements for the chairmanship apply for the Metropolitan
Police: s. 4(2).
47. Under the Police Act 1964, s. 49(3).

378 Justice, Police and Local Government

Chapter 18
Local Government:
A Sketch

Radical changes in the local government of England and Wales 1 were made
2
by the Local Government Act 1972. The Act was brought into operation
by stages, and has been fully operative since April 1974. Local government
is, however, still in a transitional state, and its main features will be
3
described in outlineronly.
This chapter deals with local government in England and Wales. 4 The
Scottish system has undergone a comprehensive reconstruction under the
Local Government (Scotland) Act 1973. In Northern Ireland, where the
position is fundamentally different, the complex and controversial local
government system has been simplified under Northern Ireland legislation,
and major local authority functions have been or are being transferred to
the central government or ad hoc bodies.

Structure and functions: the new system 5

Under Government Act 1972 England is divided into six metro-

the Local
politan counties outsideLondon (Greater Manchester, Merseyside, South
Yorkshire, Tyne and Wear, West Midlands, and West Yorkshire), and
thirty-nine non-metropolitan counties. The metropolitan counties have

1. For Scotland, see Local Government (Scotland) Act 1973 and Cmnd 4150 (1969),
Cmnd 4583 (1971).
2. The Act was largely, but by no means entirely, founded on the Report of the
Committee on the Management of Local Government (HMSO 1967); the Report of
the Royal Commission on Local Government in England (chairman. Lord Redcliffe-
Maud) (Cmnd 4040, 1969, vol. 1); Cmnd 4276 (1970), and Cmnd 4584 (1971).
3. The main works for law students are W. O. Hart and J. F. Garner, Introduction
to the Law of Local Government and Administration (9 th edn); C. A. Cross, Principles
of Local Government Law (5th edn); Richard Buxton, Local Government (2nd edn).
See also J. F. Garner, Administrative Law (4th edn), chs. 11-16; R. M. Jackson, Local

Government (3rd edn).

4. Welsh local government was the subject of a separate White Paper (Cmnd 3340
(1967)). The scheme was modified after consultations and a change of government, and
the revised scheme was incorporated in the Local Government Act 1972.
5. For a brief description of local government structure before 1974, see Richard

Buxton, Local Government (2nd edn, 1973), pp. 11-20.

Local Government: A Sketch 379

populations of between one and three million. Of the non-metropolitan
counties, all but the Isle of Wight have a population of over 280,000; none
has more than 1,500,000. Some have familiar names but larger areas -
Cambridgeshire now includes Huntingdonshire and Peterborough. Some
have unfamiliar names - Avon, Cleveland, Cumbria, Humberside. The Act
divides the metropolitan counties into metropolitan districts, thirty-six in
all. For instance, the county borough of Manchester together with the

parish of Ringway is one of twelve districts in the metropolitan county of

Greater Manchester. A Local Government Boundary Commission made
recommendations for the division of non-metropolitan counties into dis-
tricts; there are 296. Each county and district has its own council with

executive powers and duties. The total number of local authorities in

England is reduced by two-thirds. Only fourteen of the county districts
have populations of under 40,000, and their average population is trebled
to about 90,000, but there remain wide disparities; the county borough of
Bristol (425,000) became a county district in Avon, whilst the minuscule
former county of Rutland held its ground as a separate county district in
Leicestershire.
The most striking feature of the changes is the disappearance of the
county borough. Like Bristol, these powerful unitary authorities became
county districts, or like Liverpool, metropolitan districts; or they were
merged with other authorities to form a district. However, a district coun-
cil may petition for the district to be given the title of a borough, and

existing cities and boroughs will retain their formal dignities. Rural districts
have escaped the Redcliffe-Maud axe, but in almost every instance only by
virtue of merger with other local government areas to form new county
districts. Parish councils remain intact; there is also provision for urban

parishes to be constituted and for parishes to be designated as towns.

In Wales the number of counties was reduced to eight; all have new
names; there are thirty-seven county councils. There are community coun-
cils, exercising functions broadly similar to those of parish councils and

meetings in England.
The distribution of functions between the Greater London Council and
the London borough councils is unaffected by the Act. Elsewhere, the basic
allocation (expressed in over-simplified form) is as follows. Non-
metropolitan county councils are responsible for education, personal
social services, libraries, museums and art galleries, most aspects of trans-
port (including highways, parking and lighting), structure plans
and
national parks in town and country planning (with concurrent powers in

aspects), refuse disposal, consumer protection services (for ex-

most other
ample, weights and measures, food and drugs), police and fire services,
residual housing powers, and certain other functions exercisable
con-

380 Justice, Police and Local Government

currently with districts.Among the more important matters for which dis-
tricts have primary or sole responsibility are housing, public health,
markets, refuse collection, and local plans and development control in the
field of town and country planning. But the loss by a large former county

borough of its exclusive responsibilities for education and social services

is a heavy blow. In the metropolitan counties, the district councils are

the authorities responsible for education, personal social services and

libraries.
The demarcation of functions is in some respects complex and awkward,
but one class of authority may agree that its functions shall be discharged
by another as its agent (s. 101), and authorities may still appoint joint com-
mittees (s. 102). Parish councils have' much the same functions as here-

tofore - for instance, responsibilities for footpaths, cemeteries, swimming

baths, parks, open spaces and allotments, with some new ones - for in-
stance, car parks and entertainments - and wider spending powers.
Local Government Boundary Commissions for England and Wales may
make recommendations to the Secretary of State about alterations in the
status of counties and districts, the alteration of local government areas
and the construction of new areas, and changes in electoral arrangements
(Part 4); the Commission for England has a limited jurisdiction in relation
to London boroughs. No local authority can promote a private bill for
altering the status, area or electoral arrangements for any local government
6
unit or for forming or abolishing such a unit (s. 70).

Members, meetings, committees and officials

In English local government authorities there is no clearly identifiable

executive branch of government; Detailed administrative decisions are
made by resolutions of the council itself or its committees and sub-
committees, or by officials acting under specially delegated powers. 7 The
council chairman is elected to hold office for one year, and if precedents set
in the past are followed, he will seldom be re-elected; in any event, he is
far from being a first Minister. There is no Ministry though there may be
a committee with primary responsibilities for the coordination of policy;
nor does a doctrine of collective responsibility (in the sense of an obligation
to show or maintain unanimity) apply to committee decisions except in so
far as this is required by party decisions. The council’s permanent officials,
unlike senior civil servants, serve the council and its committees as a whole,
not merely the dominant group in those bodies.

6. It is thought that the Attorney-General could obtain an injunction to restrain

the introduction of such a bill before it was submitted to Parliament. Sec p. 85.

7. Qn delegation, see pp. 386, 388.

Local Government : A Sketch 381

 The system of government by committee resembles the ancient institu-
tions of government in the Channel Islands. Attempts have recently been
made (on the whole unsuccessfully) to adapt it so as to fit the needs of
government in a few of Britain’s minuscule dependent territories.

Members
Under the new system, county councillors are elected for a period of four
years to represent electoral divisions; all retire together. District council-
lors represent wards; in metropolitan districts, one third retire in each yeai;

other than an election year for the county council; in others, councillors
may either retire together every fourth year or follow the metropolitan
district pattern. In London terms of office are for three years councillors :

retire together. There is no provision for a dissolution between fixed dates

of elections. There are no aldermen on the new councils, but they may elect
honorary aldermen the aldermanic institution in London is to be phased
;

out. The first elections to the new councils were held in 1973.
The basic rules governing the conduct of local elections are similar to
those for parliamentary elections. The qualifications of voters are almost
8
identical; qualification to vote can no longer be founded exclusively on
the occupation of property. 9 To be qualified for election as a councillor,
however, a person must either be on the local register of electors or have
been resident or have occupied property or have had his principal place of
work within the area of the local authority for the twelve months pre-
10
ceding nomination day and the date of the election. There are also
11
differences in the list of disqualifications. The main disqualification is
tenure of an office of profit at the disposal of the local authority or any of
its committees; this disqualifies not only council officials but also local
12 13
schoolteachers. Bankruptcy, surcharge by a district auditor, conviction
for corrupt or illegal practices, and incurring a sentence of three, months’
imprisonment within five years of an election, also disqualify. Qualification
to sit may be challenged either by an election petition or by moving for an
injunction and a declaration that the seat is vacant. A council cannot expel
one of its members, but a member’s seat becomes vacant if he absents
himself from meetings for six consecutive months without leave."

8. For parliamentary elections, see pp. 232-3. Peers may, however, vote in local
government elections.
9. Representation of the People Act 1969, s. 15.
10. Local Government Act 1972, s. 79.
11. ss.‘80, 81.
12. Subject to certain exceptions (ss. 80(2), (3), 81(4)).
13. See p. 394, especially note 69, for the new position.

382 Justice, Police and Local Government

 The chairmen and vice-chairmen of county and district councils may
be paid such expense allowances as the council thinks reasonable. Other
members of the council receive travelling and subsistence allowances,
and a new flat-rate taxable attendance allowance or (for non-elected com-
mittee members) a small reimbursement for loss of earnings while on
14
council business. The burden of committee work can be substantial, 15
and the services of council members are almost gratuitous.
We have noted that M.P.s are now bound by resolutions of the House of
Commons which seek to regulate conflicts of private and public interest. 16
17
For members of local authorities there are statutory rules. Their general
effect is as follows. A member who has a direct or indirect financial interest
in a matter arising before the council or any of its committees must dis-

close that interest as soon and he is disqualified from

as practicable,
speaking or voting on that matter save where his interest is so remote or
insignificant that it cannot reasonably be regarded as likely to influence
him. Non-compliance with these requirements is a criminal offence, and if
a disqualified member takes part in a proceeding analogous to that of a
judicial tribunal (for example, where, the council is exercising licensing
functions), the decision can be quashed of a person ag-
at the instance
18
grieved. But on grounds of necessity or in the interests of the inhabitants
of the area the Secretary of State for the Environment may remove a statu-
tory disability imposed on a member. This dispensing power has been
liberally exercised where exemption is requested from disqualification for
speaking on a matter, less liberally where exemption from disqualification
for voting is sought.
used to be thought that the incidence of corrupt practices in local
It

government was low. But following especially the revelations in the

19
‘Poulson affair’ the Royal Commission on Standards of Conduct in
20
Public Life was set up in 1974. It reported in 1976. The Commission
found that over the previous decade fourteen councillors and seventy local
authority employees had been convicted on corruption charges, and ten

14. ss. 3(5), 5(4), 173, 174.

15. County borough councillors spent an average of two and a half hours a day on
council business (Cmnd 4040 (1969), § 506).
16. See p. 264, note 29.
17. See 1972 Act, ss. 94-8 (consolidating pre-existing law with minor modifications),
for details.
Hendon R.D.C ex p. Chorley [1933] 2 K.B. 696 (grant of opposed planning
18. f?. v. .,

permission), cf. Murray v. Epsom Local Board [1897] 1 Ch. 35 (decision to remove

obstructions to passage of vehicles; interest of member had no effect on validity

of decision).
19. See above p. 183.
20. Cmnd 6524 (1976).

Local Government : A Sketch 383

councillors had been convicted on charges of failing to disclose an interest.
Such figures, the Commission felt, were not alarming when it is remem-
bered that 26,000 councillors held office in the United Kingdom - but
corrupt dealings are secretive; crimes are hard to prove; there was no room
for complacency. The creation of new offences and greater powers for the
police, especially to inspect financial records, were recommended. Further,
the Commission was of the view that there should be a statutory obligation
on councillors to enter prescribed information at annual intervals in a
21
register maintained for the purpose. Legislation to give effect to these
proposals is awaited.
There are new Commissions for Local Administration, one for England
and one for Wales, established under the Local Government Act 1974,
Part III. The English Commission at present consists of three Local Com-
missioners, each of whom is responsible for a geographical area; the
Parliamentary Commissioner for Administration is a member ex officio.
They have jurisdiction to investigate alleged maladministration (which is
not defined in the Act) by a local authority, a police authority {not the
police) or a water authority, provided that the action or want of action
occurred after 1 April 1974. If a complaint is investigated a report is
normally issued, and the authority investigated must tell the Commissioner
of the steps it intends to take in the light of the report. In their first annual
report
22
the Commissioners recorded that 2249 complaints had been
received, of which 146 were outside their terms of reference and 783 pro-
vided no evidence of injustice or maladministration. Of the 99 reports
issued, 49 found that injustice or maladministration
had taken place and
up to the date of the annual report the authority in question had acted in
did that authority
36 of those cases to put the matter right, and in only four
to take satisfactory action. Most complaints were about local
authority
fail

planning procedures. The Commissioners were concerned at the

time taken

tocomplete investigations - about thirty weeks on average. To try to avoid

the three Commissioners in
the obvious danger of inconsistency between
their regions, all complaints are first
screened in London. It is too early to

attempt an evaluation of the Commissioners’ work.

No
system of in-
investigation, however, can be expected to reveal the
extent to
dependent
information they obtain
which local businessmen benefit from the inside
capacities. In fairness, one must also
about council policies in their public

21. This would supersede the

agreement reached by the Government and local
register following the Report of the
authority associations to maintain a voluntary
Committee on Local Government Rules of Conduct,
Cmnd 5636 (1974), which had
recommended a statutory register. ........
22. Your Local Ombudsman: Report of
the Commission for Local Administration

in England for the year ended 31

March 1976.

384 Justice, Police and Local Government

emphasize the accessibility of councillors to their constituents, and the zeal
with which many of them seek to obtain redress for legitimate grievances.
In a sense they are themselves local Ombudsmen.

Meetings

Meetings of councils are largely concerned with consideration and ratifi-

cation of reports and recommendations by committees and officers. Dis-
become more animated when politically contentious issues
cussions tend to
The growth of party politics in local government is a modern
arise.
phenomenon; Labour groups in particular will cleave to a party line and
may enforce discipline by the sanction of expulsion from the party group.
There has been a concomitant growth in Conservative, Liberal and Scottish
and Welsh Nationalist councillors. A dwindling proportion of local coun-
cillors, particularly in rural areas, stand as Independents or as members of

Ratepayers’ Associations; often they are crypto-Conservatives. Nowadays

local elections give a rough indication of trends of national political
opinion, but turn-outs at the polls are low; moreover, the personal standing
of candidates at local elections matters far more than the qualities of
individual candidates at parliamentary elections.
Council meetings are presided over by the chairman. Procedure is regu-
lated by standing orders, which may give the council power to exclude a
member for disorderly conduct. Under the Public Bodies (Admission to
Meetings) Act 1960, members of the public and the press are entitled to be
present at meetings of the council, committees of the whole council and
local education committees, unless the authority resolves that publicity
would be contrary to the public interest by reason of the confidential nature
of the business to be transacted or for any other special reason. This prin-
ciple of publicity did not extend to meetings of other council committees,
even committees to which executive decision-making powers had been
delegated by the council; but the principle was thus extended by section
100 of the 1972 Act. 23 Members of the public and the local press are
24
entitled to inspect council minutes but not the minutes of council
committees. 25

Committees

Committee structure depends partly on the functions vested in a local

Under the 1972 Act the number of committees that a
authority. local

23. Meetings of sub-committees still appear to be excluded.

24. Local Government Act 1972, s. 228(1).
25. Wilson v. Evans [1962] 2 Q.B. 283.

Local Government: A Sketch 385

authority is nytaieu to appoint was reduced, but the relevant authority

must appoint an education committee, a police committee and a social

services committee. There are also likely to be a finance committee, com-
mittees dealing with the various services administered by the authority (for
example, housing, planning, parks), probably a general purposes commit-
tee and an establishment (staff) committee, and ad hoc committees consti-
tuted for special purposes. There may be joint committees of two or more
authorities. All committees of the council other than the finance committee
and statutory committees whose composition is prescribed by law may
co-opt outside members provided that two-thirds of the committee consists
of members of the council. This numerical limitation does not apply to
26
sub-committees .

The powers vested in a committee may be to make recommendations to

the council, or to make decisions which are merely reported to the council,
or a combination of both types. A council is entitled to delegate to a com-
mittee or sub-committee (except in the case of statutory committees) any
power to make decisions on behalf of the council other than power to raise
money. Such a committee may also delegate powers to sub-committees 27 .

These express grants of power overcome the common-law rule against sub-
delegation delegatus non potest delegare ). 28 The council retains a con-
(i

current power to make decisions within the scope of the delegated area 29 ,

but if the committee has already made a decision directly affecting indi-
30
vidual interests the council cannot lawfully rescind or vary it , though it

may proceed to revoke the authority of the committee or any of its mem-
bers 31 Delegation relationships have brought forth a crop of technical
.

legal problems, some of which remain unsolved 32 .

There is, of course, no legal reason why a committee or sub-committee

endowed with executive powers should not empower a group of members
or its chairman to recommend decisions (in consultation with senior
officials) in individual cases, subject to the committee’s or sub-committee’s
subsequent approval. This is in fact how a great number of detailed
decisions are taken by local authorities.

26. 1972 Act, ss. 101, 102.

27. ibid.
28. Cook v. Ward (1877) 2 C.P.D. 255. Delegation of decision-making power to
a sub-committee was generally unlawful before the 1972 Act.
29. Huth v. Clarke (1890) 25 Q.B.D. 391 ; 1972 Act, s. 101(4).
30. Battelley v. Finsbury B.C. (1958) 56 L.G.R. 165 (appointment of a council
official by a committee).
31. Manton v. Brighton B.C. [1951] 2 K.B. 393.
32. See de Smith, Judicial Review of Administrative Action (3rd edn), ch. 6.

386 Justice, Police and Local Government

Officials

The principal officer of a local authority is the chief executive or clerk to

the council. His status has not been quite the same as that of a permanent
secretary to a government Department. He has had no general authority to
act in the council’s name, and his hierarchical authority over other
‘departmental’ heads (for example, the surveyor, or the chief education
officer) has been nebulous and incomplete. Clerks to the larger local
authorities used to be almost invariably solicitors; the lawyer plays a more
prominent role in local administration than in the civil service. But under
the new system a more varied set of patterns of authority has been intro-
duced, and the chief executive is frequently not a lawyer.
Statutory obligations are cast on various classes of local authorities to
appoint specified officers (for example, chief education officer, inspectors
of weights and measures); the list has been shortened by the 1972 Act, 33
and there is no express obligation to appoint a clerk to the council or a
treasurer, though clearly councils will have to appoint officers of com-
parable status. Of the senior officers, some are appointable or dismissible
only with the consent of a Minister; but no Minister enjoys a power in
respect of local government officers corresponding to the Home Secretary’s
power to retire a chief constable.
Superannuation is determined by statute; the Secretary of State for the
Environment has appellate functions in individual cases. Pay and condi-
tions of service are negotiated by national and provincial councils com-
posed of representatives of the local authorities and their employees.
National staff commissions to advise the Secretary of State on such matters
as recruitment and transfer have been appointed under the 1972 Act.
Unlike civil servants, local government officers do not hold office subject
to an overriding common-law rule of dismissibility at pleasure. Many local
officers have binding contracts of employment. By statute, they are to hold
office on ‘such reasonable terms and conditions, including conditions as to
34
remuneration’ as the appointing authority thinks fit. In some instances
a Secretary of State’s concurrence is required before they can be removed.
An officer who is may now be awarded compensation
unfairly dismissed
by an which may also order that he be reinstated. 35
industrial tribunal,
On the whole, the legal powers and duties of local government officers in
relation to the public have been very limited. This generalization must be
qualified. In the first place, special fiduciary duties have been cast on a
borough or county treasurer in the interests of the ratepayers, and if he
complies with an order to pay out money for a purpose unauthorized by
33. s. 112(1), (3), (4).
34. s. 112(2).
35 cf. pp. 191, 534.

Local Government: A Sketch 387

law he may be sued for recovery of the money or restrained by injunction 36
or surcharged following adverse findings by the district auditor.
37
Under
the 1972 reforms it may be that his position in these matters is no different

from that of any other local government officer. Secondly, an officer

having ostensible authority to bind his employers by contract may bind
the local authority according to the general principles of agency although
38
he is not in fact acting within the scope of his authorization. Thirdly,
since 1968, a local planning authority has been able to delegate to one of its
officers power to determine in writing various classes of planning applica-
39
tions, and the authority will be bound by his decisions. But this was a
limited exception to the general rule, which denied local government
officers power to bind their employees in such a way. However, since the
1972 Act became operative there has been a radical change in the law on
this matter. For local authorities and their committees and sub-committees
now have a general power (subject only to limited exceptions), to ‘arrange’
40
for the discharge of their functions by an official.
Suppose that, under the new system, an official to whom no authoriza-
tion has in fact been given purports to give a prospective builder an
assurance that planning permission is not required for certain construc-
tional work. The builder goes ahead on the faith of this assurance. The
local authority then issues an enforcement notice, requiring him to dis-
continue the work and to demolish the buildings already put up, because
he needed planning permission and did not obtain it. The builder contends
that the local authority is ‘estopped’ (debarred) from repudiating the
unauthorized assurance given by its officer, on which he has relied to his
detriment. What then?
The problem of the unauthorized or misleading assurance has arisen
quite frequently in administrative law, and not only in local government
41
contexts. And it has been answered in different ways, for there are com-
36. See Att.-Gen. v. Wilson (1840) Cr. &
Phil. 1; Att.-Gen. v. De Winton [1906]

2 Ch. 106. For financial duties of officers and disclosure of pecuniary interest m
contracts, see 1972 Act, ss. 114, 115, 117.
37. See p. 394.
38. On agency in public law, see pp. 395, 600. The agent cannot bind the local

authority to act ultra vires.

39. Tpwn and Country Planning Act 1971, s. 4, reproducing s. 64 of
the/Town and
Country Planning Act 1968.
40. Local Government Act 1972, s. 101. A local authority can even arrange
for its

functions in relation to a statutory committee to be discharged by an official.

Power to
raise iponey cannot be delegated.
41. For the particular situation set out above, contrast Southend-on-Sea Corporation
v. Hodgson (Wickford) Ltd [1962] 1 Q.B. 416 (see
also Princes Investments Ltd v. Frim -

ley and Camber ley V.D.C., ibid. 681) (assurance void) with Lever Finance Ltd v.
Bedfordshire
Westminster (City) L.B.C. [1971] 1 Q.B. 222 (C.A.) (assurance binding), cf.
County Council v. Secretary of State for the Environment (1972) 70 L.G.R. 420.

388 Justice, Police and Local Government

peting principles at work and a court sometimes moulds the law in order
to do justice in a particular case. The general principle is that if public
bodies or their officers give assurances that lie outside their powers, such
assurances are void ; 42 they can go back on them, for they cannot extend
43
their powers by their own conduct . This principle is subject to a recog-
nized qualification; it is minor deviations from the
open to a court to treat
prescribed form or procedure for exercising a power as being merely a non-
compliance with a ‘directory’ requirement, not affecting the validity of
what has been done 44 But there is another, more radical principle, which
.

has gained some ground of late. It can be expressed thus: when public
bodies and their officers, in their dealings with a citizen, take it upon them-
selves to assert authority in a matter concerning him, the citizen is entitled
to rely on their having that authority (and the public body will be estopped
from denying its existence) if he cannot reasonably be expected to know
its limits, and he ought not to suffer merely because they have overstepped

their power 45 So stated, the principle is too wide. But perhaps it can be
.

accepted in a situation where an officer has exceeded his authority or acted

without authority, provided that the employing body had power to do the
act itself 46 This has to be put tentatively in the existing confusion of the
.

47
case-law However, we can see that there are at least two methods by which
.

a court could reach an answer favourable to the builder who found himself
in a plight in our last paragraph. Quite apart from that, the new regime
will do away with an anomaly and may promote efficiency by giving
officials more scope for initiative.
A local authority may also be vicariously liable in tort for damage

42. See, for example, Howell v. Falmouth Boat Construction Co. [1951] A.C. 837 at
845, 847.
43. See, for example, Rhyl U.D.C. v. Rhyl Amusements Ltd [1959] 1 W.L.R. 465
(council entitled to assert invalidity of lease which it had granted in breach of
statute).
44. As in Wells v. Minister of Housing and Local Government [1967] 1 W.L.R. 1000
(informal determination that planning permission not required).
45. Robertson v. Minister of Pensions [1949] 1 K.B. 227, per Denning j.; Fa!.-
Boat Construction Co. v. Howell [1950] 1 K.B. 16 at 26, per Denning L.J., disapproved
in the House of Lords in Howell' s case.
46. A possible justification of the actual decisions in Robertson and Lever (notes 41,
45, above). But what if the officer’s powers are limited by statute? cf. p. 600, below.
47. For recent discussions of the difficulties in reconciling the principles and the case
law, see Turpin, Government Contracts pp. 30-33; Bradley [1971] Camb.L.J. 3; Evans
,

(1971) 34 Mod. L. Rev. 335; Gould (1971) 87 L.Q.R. 15; Fazal [1972] Public Law 43.
See also, pp. 599-600, below. Other decisions, showing judicial reluctance to allow local
authorities to go back on apparently non-binding assurances, where it seems unfair to
allow them to do so, are Re L. (A.C.) (an Infant) [1971] 3 All E.R. 743; JR. v. Liverpool
Corporation [1972] 2 Q.B. 299 (pp. 573-4, below).

Local Government: A Sketch 389

caused by negligent mis-statements by its employees in circumstances
where there is a duty to exercise reasonable care. 48
Local government employees remain personally liable for torts com-
mitted by them, whether or not they were purporting to act in the course
of their duties and whether or not the local authority is vicariously liable
for the tort. But some of them have statutory powers to enter property,
carry out inspections, surveys and tests, seize and destroy contaminated
food and so on, which might be actionable trespasses or nuisances if done
by private persons; and in some instances officers committing torts in the
purported exercise of public functions have been exempted from liability
provided that they have acted in good faith. 49

Finance50
Income

Local authorities derive their income from three main sources: rates;
rentals, transport undertakings, entertainments and other facilities and
services; and central government grants. Rates account for a third of their
income and general grants for a slightly higher percentage. Heavy de-
pendence on central grants has been a long-standing source of weakness
in English local government.
Rates 51 are local taxes, imposed not on income or wealth but upon the
occupation of land and buildings. For each rating area a valuation officer
of the Inland Revenue compiles a valuation list, incorporating his assess-
ment of the net annual value of each hereditament. The rating authority (a
London borough or county district) decides annually how much it needs
to raise by way of rates, and fixes the general rate at x or y pence in the
pound accordingly. Thus, if the rateable value of its area is £1 million, and
it has to raise £600,000, it will decide to levy a rate of 60p in the pound,

and a householder whose property is valued at £200 per annum will have
to pay £120 in rates in two instalments. The Greater London Council,
county councils and ad hoc local statutory authorities obtain income from
rates by issuing an annual precept to the rating authorities within their

48. cf. Hedley, Byrne & Co. v. Heller & Partners Ltd [1964] A.C. 465; Ministry of
Housing and Local Government v. Sharp [1970] 2 Q.B. 223.
49. See, for example. Public Health Act 1936, s. 305. In general the courts will
construe this immunity as extending only to situations where the officer has also
exercised reasonable care.
50. See the LocalGovernment Act 1974, Parts I and II, and the Report of the Lay-
fieldCommittee of Inquiry into Local Government Finance, Cmnd 6453 (1976), which
recommended a local income tax and reform of the rating system.
51. The law of rating was consolidated by the General Rate Act 1967. See also
Local Government Act 1972, ss. 147-9, Local Government Act 1974, Part II.

390 Justice Police and Local Government

area; the rating authorities must have regard to the amount precepted
when determining their own rates.
Appeals against individual assessments in the valuation list lie to local
valuation courts and thence to the Lands Tribunal. Farm land is not liable
to rates, and certain other classes of hereditaments are partly or wholly
exempt. Ratepayers whose income is low may be entitled to claim a rebate

from the local authority.

Although hallowed by antiquity and deficient in the excruciating com-
plexities obfuscating some forms of central taxation, rates are not a satis-
factory source of revenue. They bear most heavily on the occupier with
a large family and a large house. Moreover, the product of the same per-
centage rate will vary enormously from one rating area to another. And
very big disparities between the services offered by authorities equal in
status are not politically acceptable.
The chequered history of central grants need not be traced.
At one time
the percentage grant was favoured, but
tended to direct local authori-
this

ties from the path of economy unless their conduct of the service in question
was subject to detailed regulation and scrutiny. A 50 per cent grant is still
paid to local police authorities. Miscellaneous grants and subsidies are
paid for specific purposes - for example, for housing construction and
improvements, for aspects of the acquisition and development of land for
planning purposes, for the construction and improvement of major roads,
and for the benefit of local authorities having special responsibilities be-
52
cause of a high concentration of Commonwealth immigrants. Grants are
also made to meet the cost of rate rebates. The other form of grant is the
block grant, not appropriated to specific services; its nomenclature has
varied, but is now the ‘rate support grant’. By 1975-6 it amounted to some

90 per cent of the total grants to local authorities. The sum to be allocated
is determined by the Secretary of State in the light of the general economic

situation and after consultation with local authority associations; he lays a

rate support grant order, which is subject to the affirmative procedure,
53
before the House of Commons each year. The sums received by in-

dividual authorities vary considerably: they are dependent on local finan-

cial compared with the national average, and an assortment of
resources
factors such as population density, road mileage, and the proportions of
schoolchildren and old people. Rises in the costs of local authority services
are borne partly out of central government funds, and the amount of the

52. On the last point, see Local Government Act 1966, s. 11. And see, for a more
general power to make grants to especially needy authorities, Local Government
Grants (Social Need) Act 1969.
53. Local Government Act 1974, s. 3.

Local Government : A Sketch 391

central grant has increased. But although block grants offer local author-
ities freedom of manoeuvre than ear-marked grants, the Secretary
greater
of State is enabled to control expenditure by local authorities in general
and thereby to influence expenditure on particular services, and if he is
dissatisfied with the standards maintained by an authority, he may reduce

the grant to that authority after he has given it an opportunity to make

representations to him and then obtained the approval of the House of
54
Commons for his decision.

Borrowing

Local authorities have general statutory borrowing powers for acquiring

land and constructing buildings and public works: indeed nearly all major
capital expenditure is financed out of loans. The exercise of borrowing
powers has been subject to detailed and strict central control, which was
relaxed in 1971.
55
A loan sanction must be obtained from the Secretary of
State for the Environment and may be refused for a number of reasons,
including the need for restricting the general level of public investment and
spending.

Expenditure

Spending by local authorities is subject to more direct legal restraints. The

general rule is that local authorities can spend money only for purposes
authorized by statute. Any other expenditure will be ultra vires and can be
restrained in proceedings instituted in the High Court by the Attorney-
56
General (on his own initiative or at the relation of a ratepayer) claiming
an injunction or a declaration or both. Acts reasonably incidental to
powers expressly granted will be valid. To take two familiar examples, one
on each side of the line, a local authority could lawfully set up a stationery,
printing and binding works to deal with council documents though not
explicitly empowered but an authority empowered to establish
to do so,
57

washhouses where people could come to do their own washing could not
embark upon a venture in municipal enterprise by setting up a laundry
58
Act
where most of the work was done by council employees. The 1972

54. ibid., s. 5.
need for specific
55. Department of the Environment Circular 2/70, restricting the
approval to key sectors and items of large-scale expenditure from
April
loan sanction
1-12.
1971. See also Local Government Act 1972, Sched. 13, §§
56. Or even possibly a ratepayer suing on his
own behalf: Prescott v. Birmingham
See p. 592, note 39.
Corporation [1955] Ch. 210 (an action for a declaration).
Smethwick Corporation [1932] 1 Ch. 562.
57. Att.-Gen. v.

58.Att.-Gen. v. Fulham Corporation [1921] 1 Ch. 440.

392 Justice, Police and Local Government

stretches the concept of incidental powers by providing that local authori-
ties have power to do anything calculated to facilitate, or conducive or
incidental to, the discharge of any of their functions. 59
The courts have held that local authority funds are impressed with some
characteristics of a public trust, 60 and that councils owe a fiduciary duty to
their ratepayers to spend money only for purposes authorized by law and
in accordance with proper legal principles. For example, local authorities
cannot, in the absence of express statutory authority, subsidize the rents
of private tenants, irrespective of the tenants’ means, 61 or make free gifts to
the aged, 62 or set themselves up as model employers and pay wages far in
excess of those paid by private commercial or industrial undertakings. In the
immortal words of Lord Atkinson (Roberts v. Hop\vood( 1925)), the council
must have regard to business-like considerations and the interests of
their ratepayers, and not allow itself to be guided by ‘eccentric principles of
socialistic philanthropy, or by a feminist ambition to secure the equality
of the sexes in the matter of wages ,’ 63
. .

Since 1963 local authorities have been empowered by statute to incur a

small amount of expenditure for any purpose not otherwise authorized
which in their opinion is in the interests of their area or its inhabitants. 64
To this extent they have been relieved of the inhibitions imposed by the
ultra vires doctrine - but to no more than that extent, for the new local
authorities constituted under the London Government Act 1963 and the
Local Government Act 1972 are statutory corporations even though some
may still be styled boroughs. 65 They are thus limited to statutory functions.

Audit
The accounts of all local authorities are subject to audit. Under the 1972
Act, 66 county and district councils can choose whether to come under the

59. Local Government Act 1972, s. 111(1).

60. See note 36, above.
61. Taylor v. M unrow [1960] 1 W.L.R. 151.
62. Prescott v. Birmingham Corporation (see above; free travel concessions on cor-
poration’s transport undertaking). What was there held unlawful is now r-uthoi ized
by statute; Travel Concessions Act 1964.
63. [1925] A.C. 578 at 594. See, for the background and aftermath, Keith-Lucas,
‘Poplarism’ [1962] Public Law 52. Under the law as it then stood, the authority had
an ostensibly unrestricted discretion to pay such wages as it thought fit to its employees;
the district auditor and the courts imposed limitations on the exercise of this discretion.
The present law empowers local authorities to pay ‘reasonable remuneration’.
64. Local Government (Financial Provisions) Act 1963, s. 6, replaced by Local
Government Act 1972, s. 137. The sum to be thus used must not exceed the product of
a 2p rate in any given year (1972 Act).
65. The City of London Corporation is still a common-law corporation.
66. ss. 154-66.

Local Government: A Sketch 393

 district auditor or an approved private auditor. District auditors are civil
servants appointed by the Secretary of State for the Environment, but they
enjoy a substantial degree of independence.
Public notice is given of the annual district audit and the accounts must
be open to public inspection. Any local government elector may appear
before the district auditor and object to an item in the accounts. Under the
new system, the district auditor may certify that a loss was due to a person’s
misconduct ; 67 subject .to that person’s right of appeal to the court, the
money is recoverable from him by the local authority. In other cases, the
district auditor cannot disallow expenditure contrary to law; he must
instead apply to the court 68 for a declaration to that effect, unless the
expenditure has been sanctioned by the Secretary of State 69 An aggrieved.

elector may appeal to the court against an auditor’s decision not to certify
or not to apply for a declaration.
If the audit is conducted by an approved private auditor, an aggrieved
elector 70 may and the private auditor himself must apply to the Secretary
of State, where it appears that there has been unlawful expenditure or other
irregularities, for an extraordinary audit to be undertaken by a district
auditor.
In the new system, all the decisions about disallowance (in the absence
of misconduct) and surcharge are taken by courts.

Local authorities and the courts in brief:

Like other public corporations, local authorities can sue and be sued,
prosecute and be prosecuted, in the courts. They are not Crown servants
and have never enjoyed the legal immunities and privileges of the Crown ; 71

67. cf. theClay Cross councillors’ defiance of the Housing Finance Act 1972:
Asher v. Lacey [1973]
1 W.L.R. 1412. The Housing Finance (Special Provisions)
Act
1975, passed at the instance of a new Government, was designed so as to prevent
councillors who failed to implement the 1972 Act from having to meet the cost them-
selves.
68. The High Court, or a county court if the sum involved is within the limits
of
that court’s jurisdiction; otherwise the High Court (1972 Act, s. 161 (13)).
*
69. The court has a discretion whether or not to impose a surcharge (see*s. 161
(3)).
Surcharge may entail disqualifications (see p. 382) under the law before the 1972 Act;
but under the 1972 Act only where a loss exceeding £2000 due to wilful misconduct is
certified does the person responsible become disqualified for five years (s. 161
(7)).
70. Who has a statutory right to inspect the accounts even if they are not subject
to
district audit
71. The leading case, dealing with the liability of an ad hoc statutory
authority for
tort (but also governing the liability of Jocal authorities) at a time when the
Crown was
exempt from tortious liability is Mersey Docks and Harbour Board Trustees v. Gibbs
(1866) L.R.1 H.L.93.

394 Justice, Police and Local Government

thus, courts can award coercive orders, such as injunctions and orders of
72
mandamus, against them. Their
determined by rules
civil liability is

essentially the same as those applicable to non-public bodies, subject to

a number of particular exceptions.

1. The power of a local authority to institute civil proceedings in own

its

name for the protection of the interests of local inhabitants has, on the
73
whole, been narrowly interpreted; it appears to be wider under the 1972
74
Act. Yet in a recent case under the 1933 Act a local authority was held
entitled to bring an action for libel against a hostile critic for the protection
75
of its ‘governing reputation’.

2. Aspects of the ultra vires doctrine have already been noted. If a local

authority steps outside the limits of its public powers, the defect cannot be
cured merely by the acquiescence of persons adversely affected; 76 nor, in
general ,
is the local authority itself precluded from asserting the invalidity
of its own acts if another person seeks to rely on their legality. 77 Nor is it
estopped by its acquiescence in acts by other persons from exercising its
powers or duties to assert its rights against them; 78 and in the absence of
statutory authority to that effect it cannot grant a valid dispensation from
compliance with a statute or by-law. 79
3. By-laws, as we have already seen, can be impugned on various grounds,

each of which can be classified under the general rubric of vires. 80

4. Contracts of local authorities are governed basically by private law
rules, though they may contain standard terms and the disparity of bargain-
ing power between the parties (for example, in a contract for letting a
council house or fiat) may be such that a contract
be analogous to a will
by-law. Since 1960 local authority contracts have not had to be made under
seal. The general rules of agency apply, but a local authority can neither

72. On Crown privilege and local authorities, see Blackpool Corporation v. Locker
[19481 K.B. 349; but see p. 613, note 63 below.
1

73. Local Government Act 1933, s. 276; p. 592 below.

74. s. 222; see Solihull M.B.C. v. Maxfern Ltd The Times [1977] 1 W.L.R. 127.
, ,

75. Bognor Regis U.D.C. v. Campion [1972] 2 Q.B. 169 (criticized by Weir [1972A]
Camb L J. 238). The defendant’s bill of costs was enormous.
. .

76. Swallow & Pearson v. Middlesex C.C. [1953] 1 W.L.R. 422.

77. Rhyl U.D.C v. Rhyl Amusements Ltd [1959] 1 W.L.R. 465; but see p. 388.
.

78. Islington Vestry v. Hornsey U.D.C. [1900] 1 Ch. 695 (informal agreement to
receive sewage could be repudiated; local authority could not lawfully bind itself
thus).
79. Yabbicom v. R. [1899] 1 Q.B. 444; Redbridge L.B.C. v. Jaques [1970] 1 W.L.R.
1604; Cambridgeshire & Isle of Ely C.C. v. Rust [1972] 2 Q.B. 426. For an example of
an express dispensing power, see Greater London Council (General Powers) Act
1971, s. 4.
80. See generally Kruse v. Johnson [1898] 2 Q.B. 91 ; and p. 340 above.

Local Government: A Sketch 395

make nor become bound by a contract which is ultra vires . Apart frorr
of the ultra vires doctrine, freedom of contract is not absolute,
effects
appointment and tenure of certain senior local government officers
regulated by statute. And there is a general principle of law that pi
authorities cannot preclude themselves from exercising their more
portant discretionary powers or performing their public duties by inc
81
patible contractual or other undertakings. For example, a local auth<
cannot bind itself to grant or not to revoke a grant of planning permissi
or not to particular kind of by-law. 83 If it makes a by-law rende
make a
performance of a contractor’s obligations more burdensome, the
tractor cannot thereupon repudiate the contract, though the actual op
tion of the burden may subsequently entitle him to treat the contra<
having been frustrated. 84
French administrative law adopts a different and more flexible appr<
85
to contracts of a public nature. They are governed by a special boc
rules applied in administrative courts. These rules are designed to servi
primacy of the public interest but to do justice to the private contra*
For instance, the public authority will not be coerced into performin
obligations, and the other party will not normally be entitled to repu<
merely because performance has become very onerous through admini
tive action or supervening circumstances; but the courts have wide po
to supervise the execution of public contracts, and to vary their terms vs
the public interest or fairness to the individual so demands, directinj
payment of indemnities and compensation to the private party wher
86
damages would be obtainable as of right in English law.

5. Local authorities are not liable in tort for doing what Parliameni
87
authorized them to do, but the general rule is that they must exe
their powers reasonably so as to avoid unnecessary encroachment
private rights; otherwise they may be liable for negligence, nuisanc

trespass. no sound reason of principle why a local auth

There is

should be immune from liability because it is acting ultra vires wh

81. Sec, for example, Ayr Harbour Trustees v. Oswald (1883) 8 App. Cas. 623
generally, J. D. B. Mitchell, The Contracts of Public Authorities p. 576, below.

82. Ransom & Luck Ltd v. Surbiton B.C. [1949] Ch. 180.
83. Cory ( William ) & Son Ltd v. City oj London Corporation [1951] 2 K.B. 475 (di
84. Cory s case (above).
'

85. See Mitchell, op. cit.; H. Street, Governmental Liability ch. 3; L. Neville E
,

and J. F. Garner, French Administrative Law 2nd edn (1973), pp. 70-72; 1 10—1
86. See, on Crown contracts, Colin Turpin, Government Contracts (showing
British central government practice is not so very different from French law); p. i
87. Subject to various exceptions: see, for example, Marriage v. East Norfolk ,

Catchment Board [1950] 1 K.B. 284; Dormer v. Newcastle-upon-Tyne Corpo

[1940] 2 K.B. 204 at 217-19 (applying a narrow test of the duty
to act reasonably

396 Justice, Police and Local Government

commits a tort,
88
though committed by one of its
if the tort has been
servants 89 there may be purpose of vicciu-
difficulty in establishing for the
90
ous liability that he was acting in the general course of his employment.
In some contexts local authorities are subject to liability without fault and
liability for breach of statutory duty on much thq same basis as private
persons. Highway authorities used to be exempt from civil liability for
injury attributable to negligent failure to repair, but this immunity was
abolished by statute. 91 There is no general principle of law that public
authorities are free from liability in respect of damage caused by non-
feasance (inaction). 92
The difficulty faced by a plaintiff claiming in respect
of damage caused by inaction on the part of the authority will be to prove
that the damage suffered did result from the authority's failure to act, and
93
not from a precedent and still operative cause. The wilful misuse of
statutory powers, causing economic loss, may possibly be an independent
tort,
94
and some forms of misconduct in public office are common-law
misdemeanours. 95 Torts committed by public officers (and presumably
public bodies) acting arbitrarily and oppressively may lead to anaward of
exemplary damages. 96
6. The exercise of discretionary powers by local authorities is governed by
the general standards applied by the courts to other public bodies. These
97
will be considered in a later chapter. The performance of certain public
duties cast upon a local authority may be enforced by an order of man-
damus. a person has suffered loss, resulting from an independent and
If
separate cause, he will not normally be able to recover damages against a
public body that fails to exercise a statutory power , or is dilatory or in-
efficient in exercising such a power, which might have instigated the
98 powers on the
original loss sustained. Where the failure to exercise its

88. See Campbell v. Paddington Corporation (1911] 1 K.B. 869 (held liable).

89. On the question a servant of a local authority in attributing vicarious

who is

liability for his torts, see Stanbury v. Exeter Corporation [1905] 2 K.B. 838; Jr isher v.
Oldham Corporation [1930] 2 K.B. 364.
90. cf. P. S. Atiyah, Vicarious Liability in the Law oj Torts pp. 383-7. ,

91. Highways (Miscellaneous Provisions) Act 1961.

92. But in soroc contexts the distinction between misfeasance and non-feasance is
still material: see Bradbury v Enfield L.B.C. [1967] 1 W.L.R. 1311.
93. East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74 and Dutton v.
Bognor Regis U.D.C [1972] 1 Q.B. 373 per Stamp L.J. at 412.
.

94. See David v. Abdul Coder [19631 W.L.R. 834, and de Smith, Judicial Review
1

oj Administrative Action (3rd edn), pp. 281, 296-7.

95. See, for example, R. v. Llewellyn- Jones (1968] 1 Q.B. 429.
96. Broome v. Cassell &
Co. [1972] A.C. 1027 (dicta).
97. ch. 26. See further David Williams in J. A. Andrews (ed.), Welsh Studies in

Public Law (19701, ch. 8.

98. East Suffolk Rivers Catchment Board v. Kent [1941] A.C. 74 (flood damage
increased through dilatory repairs).

Local Government : A Sketch 397

part of the public body itself causes damage that would otherwise not have
occurred, or where the extent of control assumed by the body in the exer-
cise of the powers is so extensive as to create a duty of care towards affected
citizens, then damages may be awarded."

7. Legal disputes (for example, about entitlement to money or property)

between two local authorities, or between a local authority and another

public corporation or a government Department, may be resolved by the
award of a binding declaration by the High Court. Again, a local authoiity
may obtain a declaration as to the scope of its rights, duties or powers,
100
provided that a genuine disputed question of law is directly in issue.

8. Special statutory remedies are available to persons aggrieved by certain

local authority decisions. From decisions to refuse or revoke a licence to
carry on an occupation, an appeal may lie to a magistrates’ court and
thence to the Crown Court; appeals against demolition and closing orders
in respect of houses unfit for human habitation lie to a county court. In
such cases appeals are not usually confined to questions of law or fact; the
court can review the merits of the decision and change it, paying due regard
101
to the special knowledge of the local authority making the decision.
Review of local authority decisions by the superior courts is normally
limited to questions of legality.

101
Central control reviewed

Central-local government relationships are sometimes described in the

language of partnership. The foregoing account has implied that if this is
partnership, it is a partnership (to use an analogy taken from a different
context) between the rider and the horse. This would be an exaggeration.
There is no uniform pattern, and in providing some services the local

authorities enjoy a large measure of autonomy. Moreover, the local

still

authority associations influence the content of parliamentary and subordi-

nate legislation. Government Departments regularly consult them on
matters affecting local interests and great weight may be given to their
representations. And from time to time the associations are instrumental
in the initiation of legislation, including private members’ bills. Again,

99. Dutton v.Bognor Regis U.D.C. [1972] 1 Q.B. 373 flocal authority held liable for
damage caused by the failure of their building inspector to examine the foundations
of the plaintiff’s house properly. The judgments of the Court of Appeal illustrate the
growing willingness to accept and admit that decisions as to the liability of public
bodies must take account of policy considerations.)
100. ch. 27. See Ealing L.B.C. v. Race Relations Board [1972] A.C. 342.
101. Sagnata Investments Ltd v. Norwich Corporation [1971] 2 Q.B. 614; p. 576.
102. The most illuminating survey is J. A. G. Griffith, Central Departments and Local
Authorities (1966), ch. 1.

398 Justice, Police and Local Government

everyday communications between the central Departments and individual
local authorities are not a one-way process, and departmental officials are
made aware of local experience and problems; this awareness affects the
content of policy and the manner of exerting ultimate control.
Nevertheless, the array of controls is formidable. Where Ministers have
statutory responsibilities for promoting the efficiency of services provided
locally, or for coordinating or managing such services on a national scale,

detailed central regulation of the administration of the services tends to

follow. At the very least, the Department will be concerned to ensure a
national minimum standard. We have noted the extensive control exercised
by the Home Secretary over police matters by means of regulations, con-
trol of senior appointments, entertaining disciplinary appeals, inspection,
financial grants, compulsory amalgamation and special inquiry. The con-
trolover local educational matters - and education is the most costly local
service - exercised by the Secretary of State for Education and Science is
also substantial. Control of town and country planning and housing
matters by the Secretary of State for the Environment, and of public
health by the Secretary of State for Social Services, is somewhat less de-
tailed; but no one reading through two years’ output of town and country
planning regulations will doubt the reality of central control over matters
of procedure and substance. And lurking not far behind the scenes lies the
Treasury, with its general responsibilities for national expenditure and
economic planning.
103
In brief, the apparatus of departmental controls includes power to
104
make or withhold grants; to control borrowing for capital projects ; to
prescribe rules for the conduct of a local service, directly by regulations
(and in some cases administrative instructions), or indirectly through the
introduction of parliamentary legislation to inspect certain services (for
;

example, police, education); to confirm or refuse to confirm by-laws,

compulsory purchase orders, educational schemes, senior appointments,
and so on; to entertain appeals in respect of certain local authority de-
cisions (for example, refusals of planning permission, disputes about the
placing of children in local schools); to conduct local inquiries under par-
ticular statutory powers (for example, where objections have been lodged
to compulsory purchase orders, or into complaints about the conduct of
a police force); and to exercise default powers, by removing responsibility
103. District audit is a form of central control, but the auditors are substantially
autonomous quasi-judicial officers, subject to judicial rather than administrative sur-
veillance. Similarly the Attorney-General’s power to take proceedings to restrain
unlawful expenditure and ultra vires acts generally stands on a different footing from
central political and administrative controls.
104. Including the very important power to attach detailed conditions when issuing
loan sanctions.

Local Government: A Sketch 399

for the conduct of a service from one authority to another or taking over
responsibility at the centre (asby putting in a Housing Commissioner to
supersede an authority refusing to implement the Housing Finance Act
1972) or by issuing a mandatory order or obtaining from courts an order
of mandamus to compel the authority to carry out its statutory duties.
Against that legal background, the extra-statutory powers of central De-
partments to issue advisory and hortatory circulars to local authorities bear
no comparison with the functions of an information bureau.
How are recent statutory reforms likely to affect this situation? In the
short term, very little. The metropolitan counties are now passenger trans-
port authorities. Shortly before the 1972 Act received the royal assent,
local authorities had been required by statute to increase most of their
council rents.
105
A few months later the Government acquired power to
106
restrict rent increases. In 1973 a reorganization of the National Health
Service deprived local authorities of ancillary health responsibilities; and
local government responsibilities for water resources and sewage disposal
were transferred to regional boards (which admittedly comprise a majority
107
of local authority representatives). This looked like the protraction of a
familiar trend. Moreover, in the context of a national prices and incomes
policy, local authority expenditure and initiative would necessarily be re-
stricted, even though the Government had increased the rate support grant.
There has been a relaxation of minor central controls over local authori-
ties - for example, in the matter of senior appointments. The new authorities

have more freedom to determine their own internal structure. They may
108
attain a higher average level of efficiency than the old authorities; in

particular, they may be in a position to recruit higher-powered senior

officials. Possibly there will be some heightening of public interest in local
authority proceedings; remains to be seen what impact will be made by
it

constituting urban parishes, by giving the public extended access to com-

mittees, and by changes m planning procedures designed to attract public
109
participation. Yet without new independent sources of revenue, local

105. Housing Finance Act 1972. See now Housing Finance (Special Provisions) Act
1975.
106. Counter-Inflation (Temporary Provisions) Act 1972.
107. Water Act 1973.
108. Despite the unfortunate perpetuation of boundaries between urban centres and
suburban areas, though the central urban areas were reduced to the coordinate status ol
districts.
example, Richard Buxton, Local Government (2nd edn), ch. 7 McAuslan
109. See, for ;

[1971] Public 247. Structure plans (to be drawn up by county councils) cannot be
Law
submitted to the Secretary of State for approval until members of the public have been
given an adequate opportunity to make representations to the authority (Town and
Country Planning Act 1971, ss. 7, 8). Local plans, to be drawn up by district councils.

400 Justice, Police and Local Government

authorities will still lack significant opportunities for enterprise and experi-
mentation .
110
And the reasons why the central government insists on main-
taining supervisory controls over the main services provided by local
government will militate against dramatic change in the foreseeable
future.

do not necessarily have to be submitted to the Secretary of State for approval (ss. 11-
14). But the tendency to devalue the role of the public local inquiry in these procedures
(see also Town and Country Planning (Amendment) Act 1972, ss. 1-3, S.I. 1972, No.
1154) may work the other way. For the duty to give fuller publicity to controversial
planning applications, see 1971 Act, ss. 26-8. See also p. 544.
110. Some scope for initiative, however, is available through the medium of private
legislation. For some original ideas, see Report of Working Party on Local Authority,
Private Enterprise Partnership Schemes (HMSO, 1972). See also the Report of the
Layfield Committee of Inquiry into Local Government Finance, Cmnd 6453 (1976).
The Local Government (Miscellaneous Provisions) Act 1976, when brought into
effect, will confer powers on local authorities heretofore usually accorded them by
local legislation.

Local Government: A Sketch 401

 Part Five
Civil Rights and Freedoms

This Part of the book covers topics which are both controversial and of
immediate contemporary interest.
Chapter 19 begins with a discussion of the definition of a British subject
and the implications of that status. The complex rules governing the
immigration and deportation of Commonwealth citizens and aliens, and
the distinctions now drawn between the ‘patrial’ and the ‘non-patrial’,
are also outlined. Among the statutes considered are the British Nationality
Act 1948 and the Immigration Act 1971, and the rules made under the
latter Act (which give special rights to nationals of Community members).
We go on to discuss some aspects of the concepts of allegiance and
protection (already touched on in the latter part of chapter 4) and the rules
about British passports. The law on the extradition of fugitive offenders,
and race relations legislation, are also brought into chapter 19, because
they tend to raise the same kinds of issues covered in the early part of the
chapter. .The new institutional arrangements with regard to sex
discrimination are so similar to those for new legislation that it is

convenient to examine them here.

In chapter 20 we deal with liberty of the person. The chapter begins with
comments on the possible advantages and disadvantages of a
constitutional bill of rights. It then examines the main features of English

law on libertyof the person, with special reference to police powers of

arrest, interrogation, search and seizure; the offence of wilfully obstructing
a police officer in the execution of his duty; and remedies against unlawful
physical restraint, including the writ of habeas corpus. The chapter
includes a brief note on the law of privacy, which has been attracting
increasing attention.
Chapter 21 is concerned with another basic freedom - freedom of
expression. In order to ascertain the scope of this freedom we first have to
consider the circumstances in which a person may be prevented from
expressing himself at all (such as the operation of the Official Secrets Acts)

or through particular media - for example, the cinema, the press, the
broadcasting services. Then there is the miscellany of criminal or civil
wrongs that may be committed by speech or written words or pictorial
representations - for instance, treason, sedition, breaches of the Official
Secrets Act, blasphemy, defamation, contempt of court or of a House of
Parliament, ‘insulting words and behaviour’, incitement to racial hatred,
and, of course, offences in connection with ‘obscene’ publications.
Jn chapter 22 we deal with freedom of assembly and association,
substantially omitting the big subject of trade union law. Here again, what
one is allowed to do depends on whether any other person is entitled
to prevent one, and what specific wrongs one is liable to commit in
attempts at self-expression. The law is closely related to that stated in
chapter 21 but has a number of special features. There is no general right
to conduct a public meeting in a street or an open space. Processions are
subject to police regulation. What exactly are the powers of the police in
these matters, and in regard to unruly demonstrations or peaceful
gatherings which attract aggressive opposition? At the present time these
are important questions. As we shall see, the scope of police powers and
duties for the maintenance of public order by no means clear.
is

Part Five concludes with a chapter on of emergency (which are

states
clearly regulated by statute), the powers of the Crown in wartime, and
the nature of a state of martial law.

404 Civil Riahts and Freedoms

Chapter 19
Citizens, Aliens and Others

Background

The concept of a British subject at common law was rooted in the idea of
allegiance, the bond which linked a man with his feudal lord. In return for
allegiance a man was entitled to his lord’s protection. Persons born within
His Majesty’s dominions owed the King natural allegiance and were his
subjects. Aliens within those dominions owed a temporary local allegiance.
1

No one could divest himself of his natural allegiance; and violation of the
duty of allegiance might constitute treason.
The common law was modified by statute. By eighteenth-century legisla-
tion, children of natural-born fathers became British subjects if bom out-
side His Majesty’s dominions. An Act of 1870 enabled the Secretary of
State (the Home Secretary) to naturalize an alien; formerly the only means
of becoming naturalized was by promoting a private Act of Parliament.
The common law governing the admission and control of aliens was
obscure. On occasion aliens had been refused admission to the realm and
expelled; they had, it seems, no legal redress, but whether this was because
2

3
the power of regulation rested on the royal prerogative was never clear. In
1905 legislation was passed giving statutory powers to exclude and deport
4
In 1914 the law was strengthened,
certain classes of ‘undesirable’ aliens.
and very wide discretionary powers over aliens were continued by the
Aliens Restriction (Amendment) Act 1919, which was maintained in force
from year to year by parliamentary resolutions under the Expiring Laws
Continuance Act. Detailed executive powers in respect of aliens were set
out in Orders in Council made under the 1919 Act.

A general statutory code dealing with the methods of acquiring and

losing British nationality was laid down by the British Nationality and
1. Calvin's case (1607) 7 Co. Rep. la (Scotsman born after the union of the Crowns
was not an alien in England).
2. Mu&grove v. Chun Teeong Toy [1891] A.C. 272.
3. See p. 131 and the discussion of conflicting authorities by Thornberry (1963) 12
;

I'C.L.Q. at 422-8. Section 33(5) of the Immigration Act 1971 preserves without
spelling out the prerogative. The United Kingdom acts on the assumption that it has
power to expel members of foreign diplomatic missions who have engaged in espionage
activities.
4. For the background, see Thornberry (1962) 25 Mod . X. Rev. 654.

Citizens, Aliens and Othci^ 4 05

Status of Aliens Act 1914. For purposes other than naturalization and the
status of married women its provisions extended throughout the British
Empire. The common status of British subject flowed indirectly from the
concept of common allegiance to a common Crown.
The term ‘British subject* tended to connote subjection to Britain. This
implication was hardly compatible with the principle that the Dominions,
though united by a common allegiance to the Crown, were equal in status
with the United Kingdom, ‘in no way subordinate one to another in any
5
aspect of their domestic or external affairs’. Nationalist sentiment, more-
over, demanded locally based nationality laws, giving primacy to a concept
of local allegiance. In 1 946 Canada therefore passed its own Citizenship
Act. Under this Act, the primary status of its nationals was that of Cana-
dian citizens. In Canadian law, all Canadian citizens remained or would
automatically become British subjects; though not all British subjects were
Canadian citizens. Canadian citizenship thus became the gateway in
Canada to the secondary status of a British subject.
It was obvious that the Canadian example might be followed by other
Independent Commonwealth countries. A conference of experts met in
6

1947 and it was agreed that each independent Commonwealth country (and
Southern Rhodesia, which was internally self-governing) would adopt a
broadly similar pattern, transplanting citizenship from imperial to local
roots but including a substantial common element.
For this purpose the United Kingdom and its colonies, together with the
Channel Islands and the Isle of Man, were to form a single citizenship unit.
The United Kingdom Parliament’s contribution to the new scheme was the
British Nationality Act 1948 which, subject to certain amendments, 7 was
still the basis of United Kingdom law on the matter at the end of 1972.

1. The primary status within the unit is citizenship of the United King-
dom and Colonies.

2. A citizen of the United Kingdom and Colonies is automatically a

British subject and Commonwealth citizen.

3. All citizens of other independent Commonwealth countries, 8 as defined

5. The words used in the famous Report of the Inter-Imperial Relations Committee
of the Imperial Conference 1926 (Cmd 2768) - the Balfour Report.
6. For the legislation enacted down to 1960, see Clive Parry, Nationality and Citizen-
ship Laws of the Commonwealth and the Republic of Ireland (2 vols.).
7. See British Nationality Act 1958; British Nationality (Nos. 1 and 2) Acts 1964;
British Nationality Act 1965; Commonwealth Immigrants Act 1962, s. 12(2), (4);
Immigration Act 1971, s. 2 (5), Sched. 1, for the main changes.
8. The list has been modified and lengthened by individual independence Acts. By
the Pakistan Act 1973 citizens of Pakistan cease to be British subjects and Common-
wealth citizens, other than specified classes of Pakistani citizens who, within prescribed
time limits, are permitted to apply for registration as citizens of the U.K. and Colonies.

406 Civil Rights and Freedoms

 by their own laws are British subjects and Commonwealth
,
citizens® in the
law of the United Kingdom and its dependencies. This point is
important but
causes some confusion. A
number of the newer members of the Common-
wealth do not designate their own citizens as British subjects
at all. A
citizen of India or Ghana, for example, is not a British subject
in Indian or
Ghanaian law. Many Commonwealth countries, moreover, treat
citizens
of other Commonwealth countries as aliens or as if they were
aliens- the
ideal of full reciprocity has not been realized. But in the law
of the United
Kingdom, Indian and Ghanaian citizens are British subjects and they are
legally entitled to exercise the franchise and hold public office in the samo
manner as persons bom in this country.

4. Citizenship of the United Kingdom and Colonies may be acquired

by
birth or adoption, 10 descent, 11 naturalization (in the case of
British pro-
tected persons and aliens 12 ), registration (for example, of citizens
of other
Commonwealth countries, Irish citizens, or wives of citizens of the United
Kingdom and Colonies) 13 or acquisition of territory. Citizenship can
be
9. See section 1 of the 1948 Act, as amended.
10. i.e. birth within the U.K. and Colonies unless the father was
a non-citizen
diplomat or an enemy alien in occupation of British territory. For adoption,
see
Adoption Act 1958, s. 19, and Adoption Act 1976, s. 40(1).
11. i.e., birth outside the U.K. and Colonies, the father being a citizen. If
the father
was a citizen by descent only, additional requirements must be complied with (s.
5).
12. An alien applicant for naturalization must have resided in the U.K.
or been
in Crown service continuously for the preceding twelve months, and resided in
the
U.K. and Colonies or been in Crown service for four years out of the seven before
that. He must also be of good character, have a sufficient knowledge of the English
language and intend to remain resident or be in the public service (1948 Act, s. 10,
Schcd. 2). The Minister need give no reason for his decision and his discretion appears
to be absolute: 1948 Act, s. 26; see also Tribunals and Inquiries Act 1971, s. 14. Under
the 1948 Act the period of residence required of a British protected person was only
one year; the Commonwealth Immigrants Act 1962, s. 12(2), extended it to five years.
•
13. Conditions for registration vary. Non-citizen women marrying citizens are en-
titled to registration (1948 Act, s. 6), but non-patrial British subjects without citizenship
(see p. 408) and women who have been married to such persons are not (Immigration
Act 1971, Sched. 1, Appx. A, s. 5A(7)); patrial citizens of Commonwealth countries (see
pp. 41 1-15) are entitled after five years’ residence m the United Kingdom or in prescribed
employment under the U.K. Government, or alternatively in other prescribed employ-
ment, provided that they also have a close connection with the United Kingdom;
non-patrial citizens of Commonwealth countries and British subjects without citizen-
ship, and citizens of the Republic of Ireland, may apply for a discretionary grant of
registration subject to conditions similar to those required of an applicant for naturali-
zation in the U.K., but the prior residence requirement relates to the U.K. itself (see
1971 Act, Appx. A, s. 5A(1) - (5) for details). For registration in dependent territories,
see 1948 Act, s. 8; 1971 Act, Sched. 1, §§ 1(6), 2, 4, Appx. B. Commonwealth and Irish
citizens who, but for the 1971 Act, would have been entitled to registration, retain that
entitlement subject to a five-year period of residence in the U.K. (Sched. 1, § 2) pre-
ceding or bestraddled by the coming into force of the Act provided that their residence
is not subject to a time limit.

Citizens, Aliens and Others 407

lost by deprivation (on specified grounds, and only in the case of natural-
ized and registered citizens) 14 or renunciation (if a citizen has dual
15
nationality).

5. British protected persons

(i.e. inhabitants of protected states, or pro-

tectorates, or of a former protectorate such as Uganda if they have been

allowed to retain that status instead of opting for local citizenship 16 ) and
citizens of the Republic of Ireland (in 1948, Eire), though not British sub-
jects, are excluded from the definition of aliens for the purposes of the

Act.
17
The former group may become
naturalized, the latter may be regis-
18
tered as citizens.Rules of law applicable to British subjects before 1948
19
remain applicable to Irish citizens as if they were British subjects.
6. Citizens connected with the Channel Islands and the Isle of Man (which
are neither part of the United Kingdom nor colonies, though they come
within the citizenship unit) may be known as citizens of the United
20
Kingdom, Islands and Colonies.
7. There is a residual category of persons who are British subjects without
citizenship
21
of any of the several Commonwealth ‘citizenship units’.

The British Nationality Act 1948 drew no fundamental distinction be-

tween those British subjects who were citizens of the United Kingdom and
Colonies and those who were not, except in the law relating to citizenship.
All British subjects, irrespective of their citizenship, had freedom to migrate
to the United Kingdom (though the dependent territories as well as the
independent Commonwealth countries had their own immigration con-
trols),and they were free from deportation. In these matters British pro-
tected persons
22
and citizens of the Republic of Ireland were in the same
position as British subjects. The admission and deportation of aliens lay
or, in the case of
14. Citizenship may be revoked if procured by misrepresentations
naturalized persons, disloyalty or being sentenced to a year s
imprisonment within
five years. There is provision for rights to be heard
and for the conduct of an inquiry
an independent Deprivation of Citizenship Committee into cases of proposed
by
denaturalization. .

15. For example, where a female marries an alien and (under the laws of his
citizen

country) acquires his nationality as well, or where a citizen

becomes naturalized in a
country. The Secretary of State may withhold registration of a declaration of
foreign
renunciation only if the country is at war.

See Uganda Independence Act 1962, s. 2(1), proviso.

16.
17. 1948 Act, s. 32(1).
18. See notes 12 and 13 above.
19. 1948 Act, s. 3(2); Ireland Act 1949, s. 3(1).
20. 1948 Act, s. 33(2). Citizens of the five West
Indian associated states are entitled to
Associated States and Colonies (West
be known as citizens of the United Kingdom,
Indies Act 1967, s. 12(2)). .

British Nationality Act 1965.

21. See, for example, 1948 Act, ss. 13, 16, Sched. 3;
22. 1948 Act, s. 3(3).

408 Civil Rights and Freedoms

 within the discretion of the Home Office. In 1962, however, the imposition
of immigration controls changed the implications of the status of British
subjects and, in substance though not in form, disintegrated the United
Kingdom and Colonies as a citizenship unit.

Commonwealth citizens: immigration restrictions 1962-73

The immediate background to the Commonwealth Immigrants Act 1962

was a rapid rise in the influx of British subjects from the West Indies,
Pakistan and India, and the social ferment developing in areas of England
where coloured immigrants were settling in large numbers. Over 160,000
Commonwealth immigrants came to Britain in 1961 - many of them, no
doubt, because of a well-founded belief that the open door was about to
close.
The 1962 Act imposed on certain classes of Commonwealth citizens, and
citizensof the Republic of Ireland and British protected persons, restrictions
on freedom to migrate to the United Kingdom. 23 The controls extended to
all Commonwealth citizens other than persons who were (a) born in the

United Kingdom; or (b) holders of United Kingdom passports, 24 provided

that they were citizens of the United Kingdom and Colonies or provided
alternatively that the passport was issued in the British Isles or (c) included
;

in a passport of a person falling within categories (a) and (b).

The controls, then, applied not only to citizens of independent Common-

wealth countries but also to a large majority of those citizens of the United
Kingdom and Colonies who had not been born in the United Kingdom.
Neither in form nor in substance were the controls based on colour
indignant Canadians, Australians and New Zealanders were alike subjected
to them - but the occasion for introducing them had been the growth of
a colour problem in Britain.
The ambit of controls extended to visitors 25 and students as well as
prospective settlers. However, the discretion vested by the Act in immi-
gration officers was not absolute. In determining questions of fact they
were obliged to act fairly, giving the would-be immigrant an adequate

23. to the Channel Islands and the Isle of Man (s. 18; Sched. 3).
And
24. one issued by the United Kingdom Government (for example, through a
i.e.

United Kingdom High Commissioner’s Office in an independent Commonwealth

country) but not one issued by the Government of a colony: R. v. Home Secretary ex ,

p. Bhurosah [19681 1 Q.B. 266; Commonwealth Immigrants Act 1962, ss. 1(2) (6), (3).
25. R. v. Chiej Immigration Officer, Lympne Airport ex p. Amrik Singh [1969]
,

1 Q.B. 333; see also R v. Home

. Secretary ex p. Harnaik Singh [1969] 1 W.L.R. 835.
,

cf. R. v. Chiej Immigration OJJicer, Bradjord Airport , ex p. Ashiq Hussain [1970]

1 W.L.R. 9.

Citizens, Aliens and Others 409

 opportunity to explain himself and resolve doubts; 26 and they were not to
take legally irrelevant factors into account. 27 There was a general power to
refuse admission or to admit subject to conditions as to the duration of the
-stay and the occupation to be followed; but returning residents, and
the wives and children under sixteen of Commonwealth citizens resident in
the United Kingdom or accompanying them into the United Kingdom,
were exempt from control altogether unless already subject to a deportation
order, 28
and holders of employment vouchers, bona fide students and self-
supporting persons could be refused admission only on medical or security
grounds or because they had a criminal record or because they were subject
to a deportation order. 29 In practice immigration controls were not applied
to citizens of the Republic of Ireland.
After 1962 few Commonwealth immigrants were admitted 30 unless they
were dependants, short-term visitors, students or holders of employment
vouchers issued by the Department of Employment. In 1965 the number of
employment vouchers issued each year was fixed at 8500. 31 In 1969 a general
rulewas laid down that incoming dependants had to have entry certifi-
cates, 32 to be issued, as far as possible, in the country of origin. The
Commonwealth Immigrants Act 1968 enabled immigration officers to im-
pose a wider range of landing conditions and, in order to prevent evasions
of controls, defined more closely the circumstances in which dependants
under sixteen would be admitted. 33
The 1968 Act imposed immigration controls for the first time on holders
of United Kingdom passports. When Kenya became independent in 1963,
citizens of the United Kingdom and Colonies resident there were permitted
to retain their citizenship if after two years they had not opted to become

Kenyan citizens (or had refrained from renouncing their original citizen-
ship).
34
A majority of the resident Asian community decided to retain their
citizenship in preference to being citizens ofKenya; and many of them
obtained United Kingdom passports from the British
High Commission
in Nairobi. They had been assured before independence that if they wanted

26. Re H.K. (an Infant) [1967] 2 Q.B. 617.

27. R. v. Chief Immigration Officer , Lympne Airport (see above).
'28. Seep. 417.
29. Commonwealth Immigrants Act 1962, s. 2.
30. For a general statement of Government policy in relation to Commonwealth
immigrants, see Cmnd 2739 (1965).
31. Cmnd 3387 (1967), § 25.There was a special quota for Maltese workers.
32. Immigration Appeals Act 1969, s. 20.
33. ss. 2, 3, 4. See further, on conditions of admission, Cmnd 4298 and Cmnd
4295 (1970), §§ 1-28.
34. See Kenya Independence Act 1963, ss. 2, 3; Report of the Kenya Independence
Conference (Cmnd 2156 (1963)), pp. 13-16; Kenya Independence Order in Council,
1963 (S.I. 1963, No. 1938), Sched. 2, ch. 1.

410 Civil Rights and Freedoms

 to come to Britain the United Kingdom had no intention of
subjecti
them to immigration control. But in 1967 the Kenya Government ?
puj
suing a policy of Africanization, introduced discriminatory
measures
against resident non-citizens by withholding trading licences and work
per-
mits. Asian holders of United Kingdom passports began to emigrate
to
England. Parliament thereupon hastily ejected a barrier by extending
immigration controls to holders of United Kingdom passports issued out-
side the British Isles unless they or one of their parents or grandparents
had
been born, naturalized or adopted in the United Kingdom itself, or had
been registered in the United Kingdom or a Commonwealth country
already independent or self-governing in 1948. 35 This amendment of the
1962 Act affected a large number of citizens of the United Kingdom and
Colonies other than Kenyan Asians. 36

Immigration restrictions from 1973

The Immigration Act 1971 37 repealed the Act of 1968 and the Immigration
Appeals Act 1969, nearly the whole of the 1962 Act, and much of the
Aliens Restriction Acts, replacing them by a corpus of law for the immi-
gration, regulation and deportation of aliens as well as Commonwealth
citizens. It came fully into effect on 1 January 1973, together with statutory
instruments made in pursuance of it. It is supplemented by four new sets of
immigration rules, two sets for Commonwealth citizens 38 and two for
EEC and non-Commonwealth nationals. 39 In the result, immigration law
has become the most complicated body of rules in the whole of our con-
stitutional law.
The primary distinction drawn by the new law is between ‘patrials’on
the one hand, and ‘non-palrials’ on the other. Little special significance
40
is attributed to the holding of a United Kingdom passport.

Commonwealth Immigrants Act 1968, s. 1.

35.
As a palliative, up to 5,000 special vouchers a year are allocated to U.K. passport
36.
holders who are heads of families and subject to immigration control and who wish
to enter Britain for settlement.
37. For a thorough analysis (prior to the issue of the 1973 immigration rules) see
Evans (1972) 35 Mod. L. Rev . 508. See also I. A. Macdonald, The New Immigration
Law.
H.C. 79 (Control on Entry), 80 (Control after Entry) (1972-73).
38.
H.C. 81 (Control on Entry), 82 (Control after Entry) (1972-73).
39.
40. Except that citizens holding U.K. passports, not indorsed to the effect that the
holder is subject to immigration control are admitted without proof of patriality
(H.C. 79, § 5), and should be admitted (even though their passports are soindorsed)if
they hold a special voucher or entry certificate (§ 38). See also S. 1 1972, No. 1613, r. 5.
However, the United Kingdom Government’s responsibility under the European
Convention on Human Rights for indignities caused to United Kingdom passport

Citizens, Aliens and Others 411

 Those who are patrial have particularly close connections with the
United Kingdom, and are free from immigration control. Only British'
subjects can be patrial. But various categories of citizens of the United
Kingdom and Colonies are non-patrial, and some citizens of other Com-
monwealth countries are patrial. Citizens of the Republic of Ireland, and
other EEC nationals, though non-patrial, have rights to enter and settle
in the United Kingdom which non-patrial Commonwealth citizens lack.
All thissounds very confusing. Unfortunately this is only an introduction
to the convoluted intricacy of the legislation. Its complexity is to be
ascribed partly to the fact that a primary purpose of the legislation is to
reduce long-term settlement from the new Commonwealth to a trickle; but
the legislation is ostensibly colour-blind as are, indeed, the immigration
41
rules.
The immigration categories are superimposed on the categories recog-

nized in citizenship law. The only direct effect of the 1971 Act on citizenship
law is to make the acquisition of citizenship of the United Kingdom and
42
Colonies by registration more difficult. Although the 1971 Act was de-
signed to be ‘permanent’ (as distinct from legislation continued in force
from year to year by parliamentary resolutions), there can be no doubt
that within a few years it will be followed by a new definition of ‘United
43
Kingdom’ citizenship, accompanied by a less artificial body of immi-
gration law. This is one justification for not subjecting to close analysis

a body of rules which cannot even be satisfactorily summarized in a few

pages.

(i) These are persons having the ‘right of abode’ (section 2(6)) in
Patrials.
42.
die United Kingdom, in the sense of being free from all immigration con-

are refused entry is not excluded merely by designating them

as ‘non-
holders who
Sec also note 49, below. Under the European Convention, the European
patrial’.
African Asians
Commission on Human Rights declared various complaints by East
‘admissible’ on the grounds of de-
against the United Kingdom Government to bo
of the person and respect
grading treatment (art, 3), violation of the rights to security
and discrimination (art. 14). The Commission has held that the
for family life (art. 5)
British Government had breached the
Convention. See The Times 29 May 1974.
their duties without regard to the race,
41. ‘Immigration Onicers will carry out
United Kingdom’ (ibid. § 2).
colour or religion of people seeking to enter the
note 13, above.
-Sec
review of citizenship law has begun: see 849 H.C.
Deb. 653-64 (25 January
43 A
E E C rules about free movement of persons within
1973). In order to comply with the
the Communities the United Kingdom
Government has already had to produce a
this purpose. Thcdefimtion covers persons
definition of* United Kingdom nationals’ for
who U.K. and Colonies (or as British subjects without
arc ‘patrial’ as citizens of the
citizenship) in categories (a)and (b) below, and also Gibraltarians but Channe
of the freemovement
Islanders and Manxmen (see p. 638) do not get the benefit
provisions. See Treaty and Instruments of Accession, Cmnd 4862-1 (1972), p. 118.

412 Civil Rights and Freedoms

 3

trols or liability to deportation. Briefly, 44

a person is patrial (sections 1(1),
2) if he a citizen of the U.K. and Colonies (a) born, adopted, naturalized
is

or registered in the United Kingdom or the Islands (the Channel Islands

and the Isle of Man); or (b) whose parent had that citizenship at the time
of birth or adoption, provided that the parent had either acquired citizen-
ship in the U.K. or the Islands or been born to or Adopted by a citizen
parent (i.e. our citizen’s grandparent) who at that time had citizenship
acquired in the U.K. or Islands; or (c) settled at any time in the U.K. and
Islands and ordinarily resident there as a citizen for the last five years or
more; or if (d), though not a citizen of the U.K. and Colonies, he is a
Commonwealth citizen born to or adopted by a parent who at that time
had citizenship of the U.K. and Colonies by birth in the U.K. or Islands.
This fourth category is believed to include about five million persons who
have emigrated (or whose parents had emigrated) from this country to
Canada, Australia and New Zealand. The wives and former wives of these
patrials, in general, also have the right of abode if they are Commonwealth
citizens not otherwise qualifying for it.
45
A person claiming to be patrial by
virtue of (c) or (d) above may be required to prove his patriality by pro-
ducing a certificate of patriality to establish his right of entry. 46
Three special comments ought to be made at this point about non-
patrials other than EEC nationals. First, those who were already settled
in this country on 1 January 1973 (that is, being ordinarily resident here
without any time limit imposed by immigration legislation: see sections
2(3 )(<i), 8(5), 33) are regarded as having been given indefinite leave to
enter and remain here (section 1(2)); and although this does not in itself
exempt them from liability to deportation, they may become exempt after
five years’ residence here, provided that they are Commonwealth or Irish
citizens (section 7). Secondly, the immigration rules must not render a
Commonwealth citizen or his wife or children any less free to come and

44. Anyone imprudent enough to rely on what follows as a full statement of the law
does so at his own peril.
45. But a woman will not acquire the right of abode merely by virtue of registration
as a citizen of the U.K. and Colonies through marriage unless she was so registered
before the Act (s. 2(1) (2)); so too with registered children, but registration for the
purposes of the Act includes registration by the U.K. High Commissioner in an inde-
pendent Commonwealth country (s. 2(4)), subject to restrictions imposed by Schedule 1
to the Act.
46. Section 3(8), (9). The Home Secretary cannot refuse to consider an application
for that certificate on the grounds that she should have obtained it before leaving the
country of origin instead of queue-jumping at the point of entry to the U.K.: R. v.
Home Secretary ex parte Phansopka {1976] Q.B. An immigration officer is entitled
to refuse entry to an alien wife of a patrial who has no entry clearance certificate and
who has not applied to be registered as a U.K. citizen: R . v. Home Secretary, for
Home Office ex parte Akhtar [1975] 1 W.L.R. 1717.

Citizens, Aliens and Others 41

 go than before the Act (section 1(5)). Thirdly, Commonwealth citizens
with sl grandparent born here (but not qualifying for patriality) are allowed
under the immigration rules to enter without a work permit to seek work
here, provided that they have an entry clearance, 47 though they remain
liable to deportation. This concession, which benefits several million Com-
monwealth citizens, placated Conservative critics who objected to the
preference given by the former draft rules to EEC nationals over citizens
of the old Commonwealth countries; it goes some distance to restoring the
principle of ‘grandpatriality’ deleted from the original bill in committee.

(ii) Non-patrials. One of the main

objects of the Act was partly frustrated
in 1972 by President Amin’s expulsion from Uganda of Asians who were
not citizens of that country; most of them held United Kingdom passports
and the United Kingdom Government accepted its moral responsibility
(and what is generally thought to be its responsibility in international
law 48 ) to admit them. 49 In general, however, a prospective non-patrial im-
migrant, whether he be a citizen of the U.K. and Colonies, a non-citizen
British subject or an alien, is refused entry to take up employment unless
he can produce a work permit, and permits are issued by the Department
of Employment for a specific post for a limited period (normally not more
than twelve months) with a particular employer. The maximum period for
which a work permit will be extended is normally three years. 50 This
effectively precludes the immigrant, if he is not already a citizen of the
U.K. and colonies, from qualifying by residence for registration or
naturalization. Work permits are not needed for certain specialized forms
of employment. There are rules for seamen, visitors, transit passengers,
returning residents, students, au pair girls, businessmen and self-employed
persons, young Commonwealth citizens coming for working holidays (who
may be allowed to stay for five years 51 ), fiances, fiancees and family de-
pendants. 52 A very wide range of entry conditions may be imposed. Persons
with diplomatic or similar status are exempt from control. 53
47. Rules for Control on Entry (H.C. 79 (1972-73)), §§ 12, 27. Entry clearances are
obtainable through the appropriate U.K. representative in the country concerned (§10).
48. See generally Plender (1971) 19 Amer . Jl. Comp. Law 287. The Ugandan Asians
were mainly British protected persons (Uganda Independence Act 1962, s. 2(1)), but
British nationals in international law.
49. But in January 1973 the Home Secretary said that the United Kingdom could not
accept responsibility for a similar mass expulsion in future (note 43, above).
50. Rules for Control on Entry, H.C. 79, §§ 25-6; H.C. 81, §§ 23-4; Rules for
Control after Entry, H.C. 80, § 19; H.C. 82, § 17.
51. H.C. 79, §28.
52. H.C. 79 §§ 37-46; H.C. 81 §§ 33-41. The rules are stricter for dependants of
persons coming for settlement than for dependants of temporary workers, but even
the latter are less generous than those for EEC workers.
53. 1971 Act, s. 8 (2), (3); S.1. 1972, No. 1613.

414 Civil Rights and Freedoms

 Political asylum should be granted, under the immigration rules
to
persons seeking entry if the only country to which they can be removed
is
one to which they are unwilling to go because of a well-founded fear of
peisecution. This principle (which does not impose a legally enforceable
duty on the immigration authorities) applies equally to Commonwealth
54
citizens and other non-patrials. There is indeed a very close correspon-
dence between the entry rules for the two classes of non-patrials. In respect
of persons seeking to come here for settlement the rules appear to apply ,

more strictly to Commonwealth citizens than to aliens. 55 Some exceptions

have already been indicated. Two other sets of exceptions are of major
importance.

(a) Citizensof the Republic of Ireland. Citizens of the Republic of Ireland

are not aliens in United Kingdom law. 56 Immigration controls have not
been applied to them except under emergency conditions in Northern
Ireland. The British Islands and the Republic of Ireland now form a Com-
mon Travel Area, and bona fide local journeys within that area by persons
already resident there are not restricted by immigration requirements. 57
However, it is open to the Home Secretary to refuse entry to an Irish
citizen if he deems it conducive to the public good in the interests of
national security, or if that citizen has already been refused leave to enter,

and it is possible under the 1971 Act for him to exclude the Republic from
the Common Travel Area. 58 Under the Prevention of Terrorism (Tem-
porary Provisions) Act 1976 the Home Secretary may exclude from the
U.K. anyone (including Irish citizens) if it appears to him expedient in
order to prevent acts of terrorism designed to influence public opinion or
Government policy with respect to affairs in Northern Ireland, 59 and many
Irish citizens have been so excluded.

(b) EEC Nationals. The immigration rules, purporting to implement Com-

munity obligations, 60 provide that when an EEC national (other than an
54. See H.C. 79, § 54; H.C. 81, § 55.
55. A non-patrial Commonwealth citizen coming here for this purpose needs a
specialvoucher or corresponding entry certificate issued to him as a citizen of the
U.K. and Colonies holding a U.K. passport by a U.K. representative overseas (H.C.
79, § 38); there is no express corresponding requirement for aliens. The issue of
vouchers is rigorously controlled.
56. British Nationality Act 1948, s. 32(1); Ireland Act 1949, s. 2(1).

57. Immigration Act 1971, ss. 1(3), 9; Sched. 4; S.l. 1972, No. 1610. ‘EEC
national excludes persons who are Netherlands or French nationals solely by reason
’

of their connection with overseas territories.

58. 1971 Act, s. 9(4), (6).
59. Section 3.
60. For which EEC Treaty, arts. 3(c), 48-58 and regulations and directives
see
Simmonds, (1972) 21 I.C.L.Q 307; Mathijsen, A Guide to European
issued thereunder; .

Community Law, 2nd edn, 1975, pp. 64-9.

Citizens, Aliens and Others 415

 no condition may be imposed restrict-
Irish citizen) is given leave to enter,
ing hisemployment or occupation in the United Kingdom. Prospective
workers, businessmen and self-employed persons are admitted without a
work permit or other prior consent, and the rights of their dependants to
accompany or join them are appreciably wider than those with respect to
other aliens or non-patrial Commonwealth citizens. 61 In Community law,
restrictions of freedom of migration of Community nationals can be im-
posed by member states only for reasons of public security, public health
and certain facets of the public interest.
62
The EEC rules about freedom of
movement of workers are not to apply in Northern Ireland before 1978.

Status of non-patrials within the United Kingdom

(a) Commonwealth citizens {including citizens of the United Kingdom and

Colonies). They retain their civic rights, as British subjects. But they are
liable to deportation for breach of entry conditions (for example, over-
staying their period of entry or taking up a different job without leave) and
on other grounds, though there is no formal restriction of movement
within the country and they are not required to register with the police.
Nevertheless, given the type of condition that is imposed on thdrn, they

suffer a substantial curtailment \of their civil liberties.

(b) Citizens of the Republic of Ireland. Although not British subjects,

public office;
they are entitled to exercise the franchise and be elected to
to British subjects before the British Nationality
and rules of law applicable
63
Act 1948 still apply to them unless subsequently excluded. They are,
re-enter the United
however, liable to deportation, and it is an offence to
absence
Kingdom while subject to a deportation order; though given the
of effective immigration controls this is not exactly a rigorous sanction.

(c) Aliens {other than EEC nationals). In order to enter the country at all,
national passport or travel
an alien must normally have an acceptable
or other entry clearance. If he
document, and in some cases he needs a visa
enter, he may be subject to a condition requiring
is given limited leave to
and if he is granted an extension
enabling
him to register with the police,

six months.
61. Admission of EEC nationals for employment will normally be for
permit for five
they will normally be given a residence
If they establish themselves
years. See generally H.C. 81, §§ 49-54; H.C. 82, §§ 32-39. ,,
the pub he good ,
62 This last apparently regarded as being equivalent to
term is

Immigration Act; but the Community concept of ordre public

the words used in the
cannot readily be translated into Eng hsh
legal *

is narrower in scope and

Nationality Act 1948, s. 3(2); Ireland
Act 1949,
roTthc last point, see British

s. 3(1). Sec also note 56, above.

416 Civil Rights and Freedoms

him to remain longer than six months such a condition will then normally
be imposed. 64
Aliens cannot exercise the franchise, sit in either House of Parliament or
hold any office under the Crown within the United Kingdom unless the
responsible Minister certifies either that suitably qualified British subjects
are not available for such a post or that the alien has exceptional quali-
65
fications. Nor, in general, may they hold other public office. 66 Aliens are
subject to a limited range of other occupational, professional and pro-
prietary disabilities. Certain classes of aliens (members of visiting forces 67
and persons enjoying diplomatic and other privileges 68 ) enjoy immunities
from the operation of various rules of United Kingdom law and in some
instances are exempt from amenability to the jurisdiction of the courts.
An ‘enemy alien’, in the sense of a citizen of a country with which Her
Majesty is in a state of war, is liable to internment or expulsion under the
prerogative; 69 but if he is registered and allowed to remain within this
country 70 he has an implied licence from the Crown to take legal proceed-
ings for the protection of his interests. The term ‘enemy alien’ may
alternatively refer to a person or company carrying on business in an
enemy country. 71 Such a person or corporation need not be an enemy alien
in the first sense of the term, or indeed an alien at all. But an alien in this
second sense cannot sue in British courts, though if sued he can defend an
action and lodge an appeal. 72 His property within the realm can be
confiscated and handed over to a Custodian of Enemy Property.

(d) EEC nationals. Their rights to enter and remain in this country, sur-
passing those of non-patrial citizens, have already been noted. Within this
country the general rule is that they cannot be discriminated against by
reason of their non-citizen status except in relation to employment in the
public service.

Deportation
Before 1962 there was no power to deport British subjects except as fugitive
offenders. Under Part IX of the Commonwealth Immigrants Act 1962,
64. H.C. 81; H.C. 82, § 29.
65. Onthe last point, see Aliens Employment Act 1955, s. 1. By prerogative Order
in Council, persons with alien parents may be refused employment under the Crown;
see Bob Hepple, Race , Jobs and the Law in Britain (2nd edn), pp. 270-2.
66. Act of Settlement 1701, s. 3.

.67. Visiting Forces Act 1952; p. 207.

68. See p. 128.-
69. See p. 132. A state of war for this purpose does not appear to cover a mere state
of armed conflict in the absence of a prerogative declaration.
70. At large or as an internee, but not as a combatant.
71. See generally Lord McNair, Legal Effects of War (3rd edn).
72. Porter v. Freudenberg [1 9 15] 1 K.B. 857.

Citizens, Aliens and Others 417

courts were empowered to recommend a Commonwealth citizen (or a

citizenof the Republic of Ireland or a British protected person) for de-

portation upon conviction for any offence (including breaches of landing
conditions) punishable with imprisonment, unless he had close connections
with the United Kingdom itself or had been continuously resident therefor
five years. Appeal lay against such a recommendation to a higher court and
the recommendation was ineffective unless accepted by the Home Secre-
phase some magistrates were animated by an excess of
tary. In the first
zeal, and about half of the recommendations were rejected by the Home
Secretary. By section 16 of the Immigration Appeals Act 1969 he was
empowered to deport Commonwealth immigrants (other than those who
had been resident for five years) for breach of landing conditions without
73
any prior recommendation by a court. The 1969 Act, giving effect to most
of the recommendations of the Wilson Committee on Immigration Ap-
74
peals, provided for appeals to lie to special tribunals against a wide range
of discretionary immigration decisions in relation to aliens as well as
Commonwealth immigrants.
Till 1969 the position of aliens was fundamentally different. The Home
Secretary had (and still has) a general power to deport an alien whenever

he deemed it to be ‘conducive to the public good’. In practice the exercise

of his discretion (like his discretion to exclude an alien or a class of aliens
75
or to refuse leave to extend the stay of an alien within the country ) was
virtually unreviewable.
76
The courts held Home Secretary was
that the
exercising an executive discretionary power; that he was under no duty to
act judicially in the sense of being obliged to afford the deportee any right
77
to be heard; and that the validity of such an order could not be impugned
on the grounds that it was unreasonable. 78 Indeed, it appeared that the only
legal recourse open to the deportee was to establish either that he was not
an alien or that the order was defective in form or that the Home Secretary
did not genuinely believe the order to be conducive to the public good; in
such cases habeas corpus would be available.
The difficulty of impugning the exercise of power to deport for the public
73. This power also extended to citizens of the Republic of Ireland and British
protected persons.
74. Cmnd 3387 (1967).
75. See Schmidt v. Home Secretary [1969] 2 Ch. 149 (alien scientologists).
76. From 1956 an alien resident who wished to make representations against a
recommendation a court was allowed (by an administrative con-
for deportation by
cession) to be heard by an official, and in other cases by the chief metropolitan
magistrate, who would make a recommendation to the Secretary of State. See Cmnd
3387 (1967), §§ 53, 54.
77. R. v. Leman Street Police Station Inspector, ex p. Venicoff [1920] 3 K.B. 72
approved in R. v. Brixton Prison Governor, ex p. Soblen [1963] 2 Q.B. 243.
78. Venicoff *s case (see above).

41 8 Civil Rights and Freedoms

good was by the Soblen case 79 Soblen, an American citizen
illustrated .

convicted in the United States of espionage on behalf of the Soviet Union

had been granted bail pending an appeal. He fled to Israel, whence he was
deported at the request of the United States. In transit by air to England
he inflicted wounds on himself and had to be detained in hospital; the
immigration authorities had refused him leave to land, but he was physi-
cally present
80
The Home Secretary made an order for his deportation on
.

an aircraft bound for the United States. Soblen challenged the validity of
the order on various grounds; the principal ground was that the deporta-
tion order was in substance an order for his extradition 81 to the United
States as a fugitive offender. The offence of which he had been convicted
in the United States was not extraditable. The Court of Appeal held that
although the practical (and presumably intended) effect of the order was to
return him as a fugitive offender, the order was valid because the applicant
had failed to discharge the burden of proving that the order was a sham.
To do this he would have had to show the Home Secretary was motivated
by an ulterior purpose and did not genuinely believe that it would be con-
ducive to the public good to deport him. The reasons for the decision are
82
open to criticism Although an alien cannot become exempt from de-
.

portation merely by committing criminal offences in another country, and

although the Home Secretary was clearly entitled to form the opinion that
sending Soblen out of the country and back to the United States was con-
ducive to the public good, the court could have asked itself, on the basis
of inferences drawn from the material before it , 83 whether the Home
Secretary’s dominant purpose was to effect extradition for a non-extraditable
offence by using the simple procedure for deportation. Statutory powers
cannot lawfully be used to implement an improper purpose; and it is
immaterial whether their holder has acted in good faith or bad faith 84 .

79. R. v. Brixtort Prison Governor ex. p. Soblen [1963] 2 Q.B. 243.

,

80. In R. v. Home Secretary ex p. Soblen [1963] 1 Q.B. 829 he contended unsuccess-

,

fully that he had implicitly been granted leave to land by being detained in hospital.
81. cf. pp. 427-30.
82. See Thornberry (1963) 12 I.C.L.Q. 414; O’Higgins (1964) 27 Mod. L. Rev. 521.
Contra , Hood Phillips, Constitutional and Administrative Law (5th edn), p. 377, note 62.
83. For example, the United States want him back; Crown privilege
was known to
was successfully claimed for correspondence between the Foreign Office and the United
States Government on the matter; Soblen was willing to go to Czechoslovakia which
was willing to receive him. cf. Padfield v. Minister of Agriculture [1968] A.C. 997
(p. 579 below) on the power of the courts to draw adverse inferences.
84. Soblen committed suicide after his appeal had been dismissed.
In 1972 two Moroccan air force officers, involved in an unsuccessful plot to assas-
sinate King Hassan, fled to Gibraltar. They were returned to Morocco forthwith and
were subsequently executed. The widow of one, Amekrane, subsequently complained
about the U.K. Government’s action to the European Commission of Human Rights,
whereupon the Government made a friendly settlement.

Citizens, Aliens and Others 419

 The deportation provisions of the Immigration Act 1971 substantially
extend the discretionary powers of the Secretary of State in relation to non-
patrial Commonwealth citizens (including citizens of the UK and
Colonies). Apart from those non-patrial citizens (and Irish citizens) who
were ordinarily resident in the United Kingdom on 1 January 1973, 85 and
specialgroups like diplomats and their households and consuls, any non-
patrial is now subject to deportation if (i) the Home Secretary deems it to
be ‘conducive to the public good’, or (ii) the person is over seventeen and
recommended for deportation by a court on conviction for an offence
punishable with imprisonment, and the recommendation is accepted by
the Home Secretary, or (iii) he breaks entry conditions or overstays his
permitted period of entry or (iv) he or she is the infant child or wife of

a person against whom a deportation order is made. 86 Grounds (i) and (iv)
are new for Commonwealth and Irish citizens. Deportation of the family
with their head is not automatic; they may be allowed to stay on com-
passionate grounds.
87
A person liable to deportation as a ‘family deportee’,
or as a result of a recommendation of a court, may be given financial
assistance to leave instead of being deported. 88
The rules about deportation apply to EEC nationals also; but the possi-
bilityof inconsistency with Community rules may arise. 89

Appeals
90
The main features of the Immigration Appeals Act 1969 are preserved,
subject to certain important changes. The appellate system is too complex
to describe in detail, but some features are of constitutional interest.
The normal channel of appeal from the decision of an immigration
an adjudicator, and thence to the independent Immigration
officer is to
Appeal Tribunal. 91 An appeal against a decision given in conformity with
the immigration rules must be dismissed, except in so far as there is a dis-

85. Who, if at all times ordinarily resident here since then, cannot be deported on
grounds of ‘public good*, and if ordinarily resident here for the last five years, cannot
be deported at all (s. 7), unless they are in U K
unlawfully: see JR. v. Pentonville Prison
Governor ex parte Azam [1974] A.C. 18.
86. ss. 3(5), (6), 5, 6; Sched. 3.
87. H.C. 80 (1972-73), §§ 45, 46; H.C. 82, §§ 51, 52.
88. Act, s. 5(6). Financial contributions may also be made to assist non-patrials
wishing to leave this country to live permanently elsewhere (s. 29).
89. Such a conflict may arise because of the amplitude of the ‘public good’ ground
for deportation (see notes 60, 62 above). Since the deportation rules are in the Act
inconsistency would raise the problems considered at pp. 77-80 above.
itself,

90. See Hepple (1969) 32 Mod. L. Rev. 668.

91. For the procedural rules, see S.l. 1972, No. 1684. Members of the tribunal are
appointed by the Lord Chancellor and adjudicators by the Secretary of State.

420 Civil Rights and Freedoms

 puted question of fact; but except where otherwise stated, the adjudicating
body may review the exercise of a discretion by an immigration officer or
the Secretary of State himself. 92
In brief, appeals lie 93 to an adjudicator against (a) exclusion from the
United Kingdom (by refusal of entry or refusal of a certificate of patriality
or an entry clearance), but not while the appellant is in the U.K. unless (in
certain circumstances) he is refused leave at the port of entry; (b) variation
of or refusal to vary the conditions of entry (for example, duration of stay
or location or type of employment); (c) deportation orders (other than
orders made in pursuance of a recommendation by a court after a con-
viction), and refusals to revoke a deportation order already in force (pro-
vided that the appellant is out of the country), but the appeal lies to the
Appeal Tribunal and not to an adjudicator if the deportation order was
made on grounds of ‘public good’ or if the appellants are ‘family de-
portees’; (d) directions for removal, including objections to being removed
to a particular country or territory. Small disbursements have been made
out of public funds (section 23) to enable the Immigrants Advisory Service,
a voluntary body, to assist immigrant appellants. If on an appeal it is
alleged that an entry document is a forgery, and that disclosure of the
method of its detection would be contrary to the public interest, the investi-
gation of that allegation takes place in the absence of the appellant and his
representative (section 22(4)). Selected Immigration Appeal Reports are
published.
There is no right of appeal at all against:

1. Refusal of entry if the Secretary of State certifies that he personally

directed that the applicant be excluded because exclusion would be con-
ducive to the public good, or if entry was refused in obedience to such
a direction (section 13(5)).
2. Reduction of or refusal to increase the permitted period of entry, if

(a) the Secretary of State deportation would be

certifies that the appellant’s

conducive to the public good in the interests of national security or good

international relations or for other political reasons, or (b) the Secretary
of State took the decision in person (section 14(3)).
3. A decision to make a deportation order against him on ‘conducive*
grounds as in 2(a) above (section 15(3)), except that appeal lies as to the
destination.

4. Refusal to revoke an existing deportation order if revocation has been

^refused by the Secretary of State in person or if he certifies that exclusion
was conducive to the public good (section 15(4)).

92. 1971 Act, ss. 19, 20.

93. ss. 13-17.

Citizens, Aliens and Others 421

 It is most unusual - it may indeed be an innovation - for legislation to
attribute special effects to the fact that a Minister has taken a decision in
person. No less interesting is the method of dealing with the delicate situa-
tions mentioned in (2) above where the ‘public good’ is allegedly
and (3)
bound up with security or political factors. Under the 1969 Act appeals lay
in such cases to a specially constituted panel of the Immigration Appeal
Tribunal nominated by the Secretary of State and the Lord Chancellor, but
the tribunal’s decision would not be binding on the Secretary of State and
if he certified that disclosure of relevant evidence would be contrary to the

interests of national security the tribunal was not to disclose that material
to the appellant or his advisers. In the case of Rudi Dutschke, the former
German revolutionary student leader, who appealed in 1970/71 against the
Home Secretary’s refusal to extend his period of residence, this procedure
was adopted and in the event gave rise to agood deal of criticism. 94 But
although there is now no provision for appeal in such cases, there is an
extra-statutory reference, at the request of the person aggrieved, to the
Three Advisers who deal with civil servants’ appeals against security dis-
missals and transfers. 95 The immigrant may state his case before them.
Their advice to the Home Secretary is neither disclosed 96 nor binding on
him. ,

Does absence of provision for appeal imply total exclusion of judicial

review? Not usually, for the courts have an inherent power to set aside
administrative decisions if they are ultra vires or involve an abuse of dis-
cretion. But given the long-standing reluctance of the courts to read implied
limitations into the exercise of executive discretion in immigration law,
particularly where national policy considerations are involved, 97 it is

unlikely that the courts will interfere unless the decision has been taken in
disregard of an express substantive or procedural requirement of the Act
or the rules made in pursuance of it.
No appeal lies to the courts against determinations by the statutory
appellate authorities, but their decisions can be impugned in the same way
and on the same grounds as those of other inferior statutory tribunals - for
example, by certiorari to quash for error of law on the face of the record.
Wrongful refusal to entertain an appeal would be a ground for the award

94. See, for example, Hepple (1971) 34 Mod. L. Rev. 501.

95. 819 H.C. Deb. 375-7 (15 June 19711; see also p. 193, above.
96. The Home Secretary in the Dutschke case took the view that he would have had
to resign if the tribunal had reported in favour of allowing the appeal and he had not
felt able to accept this determination.
97. See especially the cases of Soblen and Schmidt notes
, 75, 79 above. Informal
deportation by handing a deserter over to the American military authorities (Visiting
Forces Act 1952, s. 13) appears to be unreviewable on other grounds.

422 Civil Rights and Freedoms

of a mandamus to the appellate authority. 98 An immigrant who is
uni
may obtain his release on a habeas corpus application
fully detained
may be able to recover damages for false imprisonment. 99 *
^
The power of the Home Secretary to make exclusion orders
under the
Prevention of Terrorism (Temporary Provisions) Act 1976
preventing
those concerned with acts of terrorism from entering or remaining in
Great
Britain, Northern Ireland or the U.K. has been previously
mentioned A
person served with an exclusion order may object to the Home Secretary
within four days and, if he requests, may be interviewed by an
adviser
nominated by the Home Secretary. The Home Secretary then reconsiders
the case after receiving a report from his adviser. 100 This procedure
is

executive only and so is not subject to any effective judicial review.

101
Allegiance and protection

At common law, one who owes allegiance to the Crown is entitled to the
Crown’s protection; allegiance and protection are said to be correlative
duties. The basic legal consequences of these principles at common law
are as follows

1. Violation of allegiance by levying war against the Queen within the

realm or adhering to the Queen’s enemies 102 is high treason, an offence

still attracting the death penalty.

2. One who enjoys the protection of the Crown,

(a) is entitled to be physically protected by the Crown against armed
attack within Her Majesty’s dominions, 103
(b) is entitled to be afforded diplomatic protection by the Crown, 104
(c) may made a ward of court, if an infant, 105 and
be
(d) can sue the Crown or its officers if the Crown commits or orders,
authorizes or ratifies unlawful acts in relation to him, inasmuch as act of

98. See generally chs. 26, 27.

99. Kuchenmeister v. Home Office [1958J 1 Q.B. 496 (excessive detention of
?
transit

passenger; cf. p. 129, note 153, above; ‘Kuchenmeister rides again’.)

100. Section 7.
101. See H. Lauterpacht (1947) 9 Camb. LJ. 330; Glanville Williams (1948) 10
CambLJ 54; J. C. Smith and Brian Hogan, Criminal Law (3rd edn), pp. 640-44.
.

102. Acquisition of enemy nationality by a British subject in wartime is treasonable;

R . v. Lynch [1903] 1 K.B. 444.
103. See generally China Navigation Co. v. Att.-Gen. [1932] 2 K.B. 197. Hence the

Crown cannot demand payment as a condition of granting such protection; alilerif

such protection is granted outside Her Majesty’s dominions to a person voluntarily

exposing himself to a special hazard.

104. Joyce v. D.P.P. [1946] A.C. 347 (treason); but see below.
105. Re P . ((?.£.) (an Infant) [1965] ch. 568.

Citizens, Aliens and Others 423

State is not generally available as a justification for prima facie wrongful
interference with the legal rights of a person owing allegiance. 106

Allegiance is owed by:

1. British subjects wherever they may be;

2. friendly aliens within Her Majesty’s dominions;

3. Her Majesty’s dominions if they are
friendly aliens outside
(a) ordinarily residentwithin them but are temporarily absent and evince
an intention to return by leaving family or property there, or
(b) are in possession of a current British passport or a travel document
107
entitling them to return; and
4. enemy aliens within Her Majesty’s dominions with the express or im-
plied licence of the Crown; this appears to cover all enemy aliens except
combatants 108 other than prisoners of war.
The local allegiance of an alien does not cease to be owed merely because
the part of Her Majesty’s dominions in which he is resident is occupied by
109
hostile forces. It is not clear what is the legal foundation for the sugges-
110
tion that the Crown may expressly withdraw its protection from a friendly
alien within Her Majesty’s dominions.

This pattern of rules, founded on conceptual reasoning, is nevertheless

irregular.For example, it is impossible to believe that the Crown has any
kind of legal duty to afford diplomatic protection to an alien outside Her
Majesty’s dominions, even if he has obtained a United Kingdom passport
111
by misrepresenting his citizenship. Nor, it is thought, would the Crown
be incapacitated from pleading act of State in defence to an action in tort
brought by him for ostensibly wrongful acts outside Her Majesty’s do-
minions. Resident enemy aliens can commit treason, but they do not enjoy
that modest degree of protection against the Crown which would render
them immune from being interned or expelled under the prerogative. And
the extent to which British protected persons owe allegiance and are en-
titled to protection (for example, from acts of State) has never been made

106. Johnstone v. Pedlar [19211 2 A.C. 262; see also Nissan v. Att.-Gen. [1970] A.C.
179 and pp. 133-5 above, indicating possible exceptions to the general rule.
107. Joyce’s case; Re P. ( G.E.) (see above).
108. Joyce* s case [1946] A.C. at 368.
109. De Jager v. Att.-Gen. oj Natal [1907] A.C. 326 (treason).

110. Made obiter in Johnstone v. Pedlar (above).

Camb. L.J. 54, pointing out the flaw in the ratio decidendi of
111. Williams (1948) 10
Joyce's case. Joyce, an American citizen, had obtained a British passport in 1939;
held, he
he went to Germany and, as ‘Lord Haw-Haw’, broadcast Nazi propaganda;
owed allegiance by virtue of the passport and was guilty of treason. Clearly, however,
passport. Why,
the Crown owed no duty to protect him by the fact of his having the
then, did Joyce owe allegiance while in Germany?

424 Civil Rights and Freedoms

 clear. Allegiance and protection are not fully correlative duties for every
purpose and the implications of protection may vary according to the
context.
One must also take into account modern developments in legislation and
administrative practice when considering the present scope of the common-
law rules. The following points pose problems:
1. Although under section of the British Nationality Act 1948 all
1 (3)
Commonwealth United Kingdom law, a
citizens are British subjects in
Commonwealth citizen who is not a citizen of the United Kingdom and
Colonies is not guilty of any offence in United Kingdom law in respect of
any act or omission committed either in his own country or in a foreign
country unless it would be an offence if committed by an alien in a foreign
country (section 3(1) of the 1948 Act). This means that a citizen of Canada
or India, for instance, cannot be convicted of treason in the United King-
dom for anything done in Canada or India unless his conduct would have
been equally treasonable if perpetrated by a Frenchman in France (for
example, because he was ordinarily resident in the United Kingdom
perhaps held a current United Kingdom passport).
2. As this is now the law in the United Kingdom, why should act of State
not normally be pleadable by the Crown in respect of something done to
a Canadian citizen in Canada or an Indian citizen in India? Canadian and
Indian citizens, like citizens of other independent Commonwealth coun-
tries, will receive diplomatic protection from their own Governments.
They will be issued with their own national passports, not with United
Kingdom passports. Their allegiance is owed to the Governments of their
own countries.
3. One might reply a material difference between Canada and
that there is

India, in that Canada is still Her Majesty’s dominions (the Queen

part of
being Queen of Canada) whereas India is not (being a republic). Indians
outside Her Majesty’s dominions might justifiably be regarded as aliens
for the application of common-law legal concepts, but Canadians should
not be. This is a tenable view, but not one which sounds particularly con-
112
vincing. The practical distinction between those, independent Common-
wealth countries where the Queen remains head of State and those which
are republics or which have their indigenous monarchs has worn thin.
Possibly, then, the United Kingdom common-law rules about protection
ought to be confined to citizens of the United Kingdom and Colonies and
other persons resident in or closely connected with the United Kingdom
and Colonies.
112. Wade and Phillips (8th edn), p. 269, argue that act of State cannot be pleaded
in a United Kingdom court even in respect of an act done to an Indian citizen outside
Her Majesty’s dominions.

Citizens, Aliens and Others 425

 4. Even the United Kingdom and Colonies are not a coherent unit in the
law of immigration and deportation or in relation to the issue of passports.
But perhaps no further legal consequences should be deduced from these
facts. A citizen of the United Kingdom and Colonies may not have a
United Kingdom passport, or, if he has one, may not be entitled to enter
the United Kingdom as of right, but unless he has dual citizenship he will
not be entitled to diplomatic protection from any other independent state.
Hence he ought to have the protection of the United Kingdom Govern-
ment and should be immune from arbitrary action cloaked as an act of
State. The same principle should govern British protected persons, even if
their homelands are not technically parts of Her Majesty’s dominions.

The present content of the common law rules about allegiance and pro-
tection is therefore uncertain. Considerations of public policy and practical
realities may be more relevant than general legal concepts for the decision
of a particular case.

Passports: a note

United Kingdom passports are issued under the royal prerogative by the
Passport Office, a sub-department of the Foreign and Commonwealth
Office. They may be refused, revoked and impounded in the absolute dis-
cretion of the Crown, and there is no formal machinery for appeal or,
apparently, any means by which a person aggrieved can obtain judicial
review of a decision adverse to his interests. 113 In form a passport is a
request in the Queen’s name to afford the holder free passage and any
necessary assistance; it is also a certificate of identity and citizenship. A
holder (provided, at least, that he is in fact a citizen) is entitled to the
diplomatic protection of the United Kingdom Government in a foreign
country, though any such duty cast upon the Crown does not appear to
be directly enforceable injudicial proceedings. The Government has stated
that in practice ‘passports are withheld in four classes of case: (i) in the
case of minors suspected of being taken illegally out of the jurisdiction;
(ii) in the case of persons who have been repatriated to the United King-

dom at the public expense and have not repaid the expenditure incurred on
their behalf; (iii) in the case of persons believed on good evidence to be
113. Secretary ofState v. Lakdawalla [1972] Imm. A.R.26. Contrast the position in the
U.S.A. and India, where the highest courts have held that the Executive has not
an arbitrary discretion to refuse or revoke a passport and thus derogate from a citizen’s
freedom of movement. See, for example, Kent v. Dulles 357 U.S. 116 (1958). Justice,
Going Abroad: A Report on Passports (1975), is a good summary of the present practice,
which recommends the enactment of a statute conferring upon all citizens the legal
right to a passport. And see Jaconelli (1975), 38 Mod. L.R. 314.

426 Civil Rights and Freedoms

fleeing the country to avoid prosecution for criminal offence; (iv) in
the
case of persons whose activities “are so notoriously undesirable or danger-
ous that Parliament would be expected to support the action of the Foreign
Secretary in refusing them a passport”.’ 114
In practice it is extremely difficult to travel outside the country without
a valid passport or national identity card, because carriers will demand
production of passports by passengers, and immigration authorities else-
where will not normally accept the entry of non-holders. Since any decision
not to grant, or to revoke or withhold, a passport may seriously restrict
freedom of movement, there should be a statutory procedure for appeal or
review, with special arrangements for politically sensitive cases.

Fugitive offenders

Special statutory rules govern the surrender from the United Kingdom of
fugitives from criminal justice in other countries. These rules apply, in
general, to all persons, irrespective of their citizenship. The relevant body
of rules depends on the country seeking extradition. Rendition to the
Republic of Ireland is effected by a simple procedure under the Backing of
Warrants (Republic of Ireland) Act 1965; to Commonwealth countries
under the Fugitive Offenders Act 1967; and to foreign countries under the
Extradition Act 1870 (as amended). As we have noted, 115 a deportation
order may, in certain circumstances, have the same practical effect as an
extradition order.
Extradition to foreign countries is regulated by statute and treaty. There
can be no extradition (as distinct from deportation) to a foreign State in
the absence of a bilateral treaty to which effect is given in United Kingdom
law by an Order in Council made in pursuance of the Extradition Acts.
The terms of such an Order in Council must be compatible with the Acts-
for example, it cannot provide for surrender of a person charged with an
offence that is not an extradition crime scheduled to the Act - but there is
scope for variation; thus, some extradition treaties exclude the rendition
of nationals of one or both of the contracting states.
Extradition proceedings are commenced by a foreign government’s
issuing a requisition for surrender to the Foreign and Commonwealth
Office, together with the evidence on which the request is based or the
record of the conviction if any. This is forwarded to the Home Office and
thence, if it appears to be in order, to the chief metropolitan magistrate
who is directed to issue an arrest warrant. When the person whose surren-
der is sought has been arrested, the requisitioning State must make out a
prima facie case before the magistrate at Bow Street that the accused is
114. 209 H.L. Deb. 860 (16 June 1958).
419 above.
115. Soblcn ' s case, p.

Citizens, Aliens and Others 427

 guilty of the offence. If the magistrate is so satisfied, and is also satisfied
that the requirements of the Acts (see below) have been complied with, he
will remand the accused in custody for surrender; but within fifteen days
the accused may apply High Court for habeas corpus to secure his
to the
release, and thence appeal (with leave) to the House of Lords 116 The sup- .

erior courts cannot receive fresh evidence designed to show merely that the
magistrate’s conclusion as to the weight of evidence 117
but was erroneous
,

they may
consider a wide range of questions: whether the magistrate had
any reasonable ground for his conclusion that a prima facie case had been
118
established ; whether the offence was one within the Act, the Order in
Council and the treaty; whether the ingredients of the offence are sub-
stantially similar in the two legal systems; whether the surrender of the
accused is being sought for the purpose of detaining or trying him for
a different offence; and whether it is being sought for an offence of a poli-
tical character or in order to try or punish him for an offence of a political
character . 119
The House of Lords has, however, recently held that the
courts have no jurisdiction to refuse extradition on the ground that sur-
render would be oppressive 120 or even on the ground that the accused had
,

been convicted by the foreign court without an opportunity to defend him ,

self and hence in breach of natural justice 121 it lies within the discretion of
;

the Home Secretary 122 to decide whether, in all the circumstances, the
extradition order should be enforced. The courts are also extremely
reluctant to attribute ulterior motives to a foreign government with which
the United Kingdom maintains
diplomatic relations; consequently they
will accept assurances that the
accused will not be tried or detained for any
other offence or on political grounds upon his surrender 123 The Home .

Secretary may exercise a political discretion after the court proceedings

have terminated.

1 16, The requisitioning government may also appeal to the Lords against the award
of habeas corpus.
Governor ex p. Schtraks [1964] A.C. 556.
117. R. v. Brixton Prison ,

See also R. v. Brixton Prison Governor ex p. Armah [1968] A.C. 192

118.. ibid. ,

(Fugitive Offenders Act 1881).

119. Extradition Act 1870, s. 3. It would seem that for extradition to be refused on
this last ground the must have already been committed. See R. v.
‘political* offence
Brixton Prison Governor, ex p Keane
. [1972] A.C. 204 (a case decided
on the similar
but not identical wording of section 2(2) of the Backing of Warrants (Republic of
Ireland) Act 1965).
120. Atkinson v. United States Government [1971] A.C. 197.
12L R. Brixton Prison Governor, ex. p. Kotronis [1971] A.C. 250.
v.

122. Extradition Act 1870, s. 11.

'
123. R. v. Brixton Prison Governor, ex p. Kotronis (see above), cf. the differences in
approach to this question in the judgments in R. v. Brixton Prison Governor, ex p .
Kolczynski [1955] 1 Q.B. 540.

428 Civil Rights and Freedoms

 Nevertheless, the magistrate, or the court on a habeas corpus applica-
tion, will direct the release of the accused if of the opinion that the offence
with which he has been charged is of a political character. Indeed, the
Home Secretary should refuse to proceed with a request for surrender in
the first place if the offence is political. To this extent the law does recognize
a right, and not merely a privilege, of political asylum. 124
For a long time it was thought that an offence could not be political
unless it was committed in pursuance of a struggle for power between

contending factions within a State. The murder of a Swiss official in

furtherance of an uprising was an offence of a political character; 125 a
murder committed by a bomb-throwing anarchist whose destructive im-
pulses were directed against organized society at large was not. 126 Up to
a point this test is serviceable; thus, a family dispute about the religious
education of children in Israel, leading to perjury, kidnapping and a
national political controversy, did not fall within the concept of a political
127
offence. But no all-inclusive test is acceptable. For example, a mutiny
and assault on the high seas designed to enable the criminals to escape to
the West from a communist regime - an offence which in Poland would
have been regarded as treasonable - was held to be of a political character,
although there was no element of a struggle for power. 128 The murder of
Jews in a Nazi concentration camp was an act of State policy, but it was not
a political offence because the offenders would not have been entitled to
political asylum in Britain. 129 Genocide is now an extradition crime and is
deemed not to be of a political character (Genocide Act 1969, s. 2). Hi-
jacking aircraft and unlawful acts against the safety of aircraft are also
extradition crimes, but the ordinary exception for political offences remains
(Protection of Aircraft Act 1973, s. 5).

In the eyes of the courts, the categories of offences of a political character

have not been closed. In deciding whether an offence does fall within this

general description, or within the list of extradition crimes, the courts are
entitled to receive additional materialand can review the determination of
the magistrate de novo. of course, the offence (for example, espionage)
If,

is not one of the scheduled crimes, the question whether it is of a political

character does not arise.

124. cf. p. 415. But to be ‘political’, the offence must be directed against the requisi-
tioning State, not a third State: Cheng v. Governor of Pentonville Prison [1 973 J A.C.
931.
125. Re Castioni [1891] 1 Q.B. 149.
126. Re Meunier [1894] 2 Q.B. 415.
127. R. v. Brixton Prison Governor, ex p. Schtraks (see above).
128. R . v. Brixton Prison Governor , ex p. Kolczynski [ 1 955] 1 Q.B. 540, per Cassels J.
129. Re Extradition Act 1870 ex , p. Treasury Solicitor [1969J 1 W.L.R. 12,

Citizens, Aliens and Others 429

 lav/ governing extradition to foreign countries has been sub-
stantially influenced by the law and practice of international society. Till
1967, the law relating to fugitive offenders within the Commonwealth was
based on the archaic concept of a united Empire. The Fugitive Offenders
Act 1881 did not preclude the rendition of an alleged political offender to
a Commonwealth country, and there was no list of extradition offences.
In the 1960s, when a number of dependent territories had become self-
governing and independent, the omission of this safeguard was a source
of serious embarrassment. 130 But the courts had a discretion, not available
to them under the Extradition Acts, to discharge a prisoner on a habeas
corpus application if his surrender would be unjust or oppressive; this
power was sparingly exercised. 131
Following discussions with Commonwealth countries, it was decided 132
to replace the Act of 1881 with one corresponding more closely to inter-
national practice. The Fugitive Offenders Act 1967 falls into two main
parts. Rendition to designated independent Commonwealth countries is
permissible only for offences listed in the schedule to the Act. This list is
more up to date than the corresponding list in the Extradition Acts.
Although the procedure for initiating rendition under the 1967 Act is
simpler, procuring rendition is in fact harder; for the alleged offence must
not merely fall within the scope of the general description of the offence
in United Kingdom law but must actually be an offence (assuming that it
had been committed in the United Kingdom) in the law of the United
Kingdom 133 and (again on the same assumption) be within the territorial
jurisdiction of a United Kingdom court. 134 Rendition must be refused if
the offence is of a political character, or if the request has in fact been
made for the purpose of prosecuting or punishing him on account of his
race, religion or political opinions, or if the offender might 135 be prejudiced
130. See especially Enahoro's case, one aspect of which was reported as R . v. Brixton
Prison Governor, exp. Enahoro [1963] 2 Q.B. 455. See also R. v. Brixton Prison Governor
,

ex p. Armah [1968] A.C. 192; Zacharia v. Republic of Cyprus [1963] A.C. 634.
131. Fugitive Offenders Act 1881, s. 10. See Zacharia's case (above) where the
courts refused to discharge the prisoners but the Home Secretary, in the exercise of
his executive discretion, decided not to return them to Cyprus where their lives might
have been in serious danger.
132. Cmnd 3008 (1966).
133. R Brixton Prison Governor, ex p. Gardner [1968] 2 Q.B, 399. But ifdoes not
. v.
have to be an offence of the same name in United Kingdom law: see R. v. Pentonville
Prison Governor, ex p. Teja [1971] 2 Q.B. 274.
134. R. v. Brixton Prison Governor, ex p. Rush [1969] 1 W.L.R. 165. cf. Treacy
v.
D.P.P. [1971] A.C. 537.
135. If the apprehended prejudice is grave, it is enough for the applicant for
habeas
corpus to show that a serious possibility of its occurrence exists; he does not have to
show that the degree of possibility exceeds 50 per cent: R. v. Pentonville Prison Governor
,
exp. Fernandez [1971] 1 W.L.R. 987.

430 Civil Rights and Freedoms

at his trial or detained on any of these grounds. References
to offenc
a political character do not include offences against the life or
P onof
the Queen. 136
For dependent is no list of scheduled
territories there offences and rend*
tion permissible for any offence punishable with twelve
is still
months'
imprisonment. Nor is the rendition of ‘political 5 fugitives
profited
though the Home Secretary has a discretionary power to refuse to
return
J
137
offenders on political grounds.
In relation to requests for return of offenders by any
Commonwealth
country, the magistrate or court may order discharge, on committal
pro-
ceedings or on an application for habeas corpus, if it would be unjust
or
oppressive to return an offender because of the triviality of the offence
or
the lapse of time since it was committed or because the accusation
has not
been made in good faith in the interests of justice. 138 The Home Secretary
must refuse to surrender the prisoner to an independent Commonwealth
country, and may refuse to surrender him to a dependent territory, if
he
is satisfied on these grounds that surrender would be unjust or
oppressive*
he may refuse surrender of an offender to any part of the Commonwealth
where he faces the capital penalty for an offence not punishable with death
in Britain. Taken as a whole, the safeguards against unfair rendition are
better under the 1967 Act than under the Extradition Acts.

Race relations legislation

Britain has no laws which discriminate against persons on account of their

race and colour. A Jew, a Chinese, a Negro, for example, all enjoy the
same voting rights: they must' merely comply with the same rules about
nationality and residence as everybody else. They are equally entitled to the
facilities for education and to the benefit of the social services. The law

does not order segregation in public transport or anywhere else. In these

respects Britain is free from the legal restraints which have agitated the
United States so much. In this sense, there is equality before the law.
An equally important practical question is the effectiveness with which
the law takes positive steps to ensure that persons are not discriminated
against on account of race or colour. To say that the law does not dis-
criminate is one thing, but does the law compel persons not to discriminate,

or otherwise protect those who are liable to be discriminated against?

136. 1967 Act, s. 4.

137. s. 9(3).
138. s.8. The High Court may receive additional evidence for this purpose or when
determining whether there are political reasons for discharging him within the mean-
* ’

ing of section 4. The Home Secretary is not to surrender a ‘political’ offender even
if the courts refuse to order his discharge.

Citizens, Aliens and Others 431

 It was to deal with this question that Parliament for the first time intro-
duced legislative controls in the Race Relations Act 1965. That Act had
and was based on inadequate research, but experience
limited application
of operation was helpful in preparing the much more comprehensive
its

Race Relations Act 1968 which replaced it.

The main emphasis of the 1965 Act was placed not on punishment but
on rendering certain discriminatory practices unlawful and devising
machinery to reduce friction and promote conciliation. The Act made it
unlawful for the proprietors, managers or other employees of certain
places of public resort - hotels, restaurants, cafes, public houses, theatres,
cinemas, dance halls, sports grounds, swimming pools and other places of
public entertainment or recreation - and public transport undertakings to
practise discrimination on the ground of colour, race or ethnic or national
origins against persons seeking to use these facilities. Complaints of dis-

crimination were to be made to local conciliation committees of the Race

Relations Board, a body of three members appointed by the Home
Secretary; the Board was to make annual reports to be laid before Parlia-
ment. A
committee would investigate the complaint and try to reach
a settlement and obtain an assurance that discrimination would cease. If it
was unsuccessful it would report to the Board; the Board was to report to
the Attorney-General if it considered that a course of discriminatory con-
duct in contravention of the Act was likely to continue, and the Attorney-
General could then apply to the High Court or a county court for an
injunction to restrain its continuance. Neither the committees nor the
Board had any power to obtain information or subpoena witnesses, and
no new civil remedy was given to a person aggrieved by discriminatory acts.
Section 5 of the Act invalidated discriminatory restrictions on the disposal
of tenancies other than in premises occupied by the owner or head tenant.
In 1967 there was published a penetrating critique of the Act with
suggestions for legislative reform drawing on the experience of civil
rights
139 Act
legislation in the United States and Canada. The Race Relations

(the enactment of which was doubtless accelerated by the bad im-

1968
pression created by the Commonwealth Immigrants
Act 1968) gave effect
to a number of these suggestions. The Act defined discrimination so as to
a single act of discrimination could be unlawful.
include segregation and
the provision
The ambit of unlawful discrimination was extended to cover
to the public, or to a section of the public, of
goods and facilities (including
services);
trading, banking, insurance, credit, education and professional
the provision of
employment, and trade unions and business associations;
and business premises; and advertisements and
housing accommodation
Geoffrey Howe and Geoffrey Bindman, Report on Anti-
139. Harry Street,

Discrimination Legislation (1967).

432 Civil Rights and Freedoms

 other notices.A number of exceptions to the general rule were introduced
for particularemployment and housing situations. 140 The provisions of the
Act were made generally applicable to the Crown and the police. 141
The Act posed some difficult problems of interpretation. Discrimination
on the grounds of a person’s present nationality (as distinct from his
142
‘national origins’) was not contrary to the Act. The House of Lords
recently held that private social or political clubs with a genuinely selective
membership did not discriminate unlawfully within the meaning of the Act
by operating a colour or racial bar inasmuch as they were not providing
143
facilities to ‘the public or a section of the public’.
The Act altered the procedure for investigation of complaints, strength-
ening the powers and enlarging the size of the Race Relations Board.
Complaints might be made direct to the Board; the Board could also
decide to undertake an inquiry into suspected discrimination of its own
motion, and it assist it. Conciliation and in*-
could appoint assessors to
vestigation procedure was was essentially informal, and the
spelt out, but
Board and area committees had no power to compel attendance or the
production of information. Complaints about employment, unions and
employers’ associations were referred in the first instance to the Secretary
of State for Employment; in certain circumstances the Board would carry
out the investigation. The Act also provided for the establishment of a
Community Relations Commission, an advisory, research, coordinating
and promotional body.
Under the 1968 Act, the power to bring civil proceedings for an in-
junction to restrain a course of discriminatory conduct was transferred
from the Attorney-General to the Race Relations Board. The Board might
also be awarded a declaration that a discriminatory act was unlawful and
special damages and damages for loss of opportunity (but not damages for
humiliation and distress) on behalf of a person damnified by such an act
(ss. 19-22). Courts, moreover, were expressly empowered (s. 23) to revise

the terms of contracts in such proceedings so as to bring them into con-

formity with the Act. The county courts in which these proceedings were
brought were specially designated by the Lord Chancellor, and the judge
had to be assisted by two expert assessors.
The 1968 Act has now been replaced by the Race Relations Act 1976.
This Act has two aims, to harmonize with the machinery for sex dis-

140. ss. 1-9.

141. s. 27; subject to various exceptions - for example - the Crown was not placed
under a duty to employ aliens on the same basis as British subjects (s. 27(9)(tf)).
142. Ealing L.B.C v. Race Relations Board [1972] A.C. 342.
143. Race Relations Board v. Charter [1973J A.C. 868 (Indian excluded on racial
grounds from local Conservative club).

Citizens, Aliens and Others 433

 \

crimination put into operation in 1976 (and examined below) and to make
good some of the defects revealed in the 1968 Act. The Act abolishes both
the Race Relations Board and the Community Relations Commission, and
one body alone, the Commission for Racial Equality, will administer it.
The Commission consists of a chairman and not more than fourteen
members appointed by the Home Secretary the various racial minorities
;

are substantially represented in its composition.

A person discriminates if on racial grounds he treats another less favour-
ably than he treats or would treat other persons. The ‘racial grounds are
extended so as to include nationality and citizenship.
144
A
new provision
makes it unlawful to apply a requirement or condition which (irrespective
of motive) is such that the proportion of persons of a particular colour,
race, nationality or ethnic or natural origins able to comply with it is con-
siderably smaller than the proportion of other persons able to do so, and
is not justifiable on racial grounds. The ambit of the Act is
which sub-
same as before, but certain anomalies are removed. Where
stantially the
principals engage somebody personally to execute labour or work, or
where a firm of six or more partners offers new partnerships, the Act
applies. Bodies which confer authorization to engage in a particular trade
or profession are covered. Clubs with twenty-five or more members are
now affected. 145 Advertisements for jobs outside the U.K. are brought
within its scope.
It is the aggrieved individual, not the Commission, who instigates a
complaint of discrimination. The Commission will, on application, be able
to give assistance to a claimant or potential claimant where the case raises
an issue of principle or it is unreasonable, for instance, by reason of the
case's complexity, or the respective positions of the parties to the dispute,
to expect the claimant to proceed on his own behalf. ‘Assistance’ includes
advice, conciliation, arranging for legal advice and assistance, and repre-
sentation. The 1976 Act scraps the previous arrangements under which
local Race Relations committees used to seek conciliation of all complaints
'under the legislation.
If' the alleged discrimination is in the field of employment, he complains
to an industrial tribunal. It is hoped that conciliation officers of the
Advisory, Conciliation and Arbitration Service of the Department of
Employment will, by their advice, cause most cases to be settled without a
hearing before the tribunal. The complainant has the burden of proving
discrimination before the tribunal. If he wins, the tribunal may declare his

144. Reversing Ealing L.B.C. v. Race Relations Board above.

145. Reversing Race Relations Board v. Dockers' Labour Club and Institute Ltd [1976]
A.C. 285 above.

434 Civil Rights and Freedoms

right,or award compensation up to £5200, or recommend that
the
ployer take action to obviate or reduce the adverse effect on thecoma]^"
ant of the act of discrimination.
^
Complaints regarding bodies over which the Secretary of
State for
Education and Science exercises powers are first made to him, and
he has
two months in which to act. Subject to 'that, all complaints
regardin
education, housing and the provision of goods, facilities and services are
made The complainant has the burden of proving
to county courts.
dis-
crimination. If he succeeds the court has power to award damages
(in-
eluding damages for injured feelings) and to grant an injunction restraining
the defendant from discriminating unlawfully against the plaintiff.
Complaints about discriminatory advertisements are handled by the
Commission, which can if necessary institute proceedings in the County
Court, seeking an injunction. One of its main functions is to conduct in-

vestigations into discriminatory practices. has powers to require the

It

furnishing of information and the production of documents; it can seek an

order in the County Court ordering anyone who refuses to produce the
information. If its investigation (after hearing the person investigated)
reveals discrimination it may issue a non-discrimination notice requiring
him to cease, but an appeal lies to the County Court or industrial tribunal,
as the case may be. It is empowered to ensure that in the subsequent five
years the notice is complied with, and if necessary, to apply to the County
Court of employment) for an injunction. It collects information
(in the field
about all and monitors the legislation generally.
individual complaints
Much in the 1976 Act is an improvement on the earlier Acts. Particularly
welcome is the power of the Commission to enforce production of docu-
ments. For the first time the Commission should be able to uncover any
widespread discriminatory practices and secure their cessation. The power
of the courts to grant injunctions restraining discriminatory activities is
also important. What causes most disquiet in this Act is the imposition on
the aggrieved of the task of pursuing his complaint, without legal aid,
before an industrial tribunal. There has always been difficulty about over-
coming the fear of an aggrieved person to report discrimination. In the past
he has known that the case would be handled for him at every stage by the
central body; all he had to do was to report his complaint. It remains to be
seen how much unlawful discrimination will now go unchecked because
timid, harassed, ignorant or poor victims will not take cases themselves.lt
also remains to be seen whether the Government will be more effective than
in the past in weeding out discriminatory practices by those with whom it

makes contracts.
Nobody should believe that law alone can create racial harmony; yet

without legal sanctions, the prospects are much worse. This Act creates the

Citizens, Aliens and Others 435

legislative framework for better race relations in all those areas of potential
conflict.
The 1976 Act also extends the scope of the criminal law. Succumbing to
pressure consequent on incidents at Fascist meetings, the Government in
the Race Relations Act 1965 made it a crime for a person to publish or
distribute threatening, abusive or insulting words, if the matter or words
were likely to stir up hatred against any section of the public in Great
Britain on grounds of colour, race or ethnic or national origins, or citizen-
ship. There was disquiet when this new crime was introduced in 1965
especially because the content made the publication criminal even though
no public order resulted. The offence under section 70 of the 1976 Act is
wider in that it is no longer necessary to prove an intention to stir up
hatred.

Sex discrimination

Not had Britain any laws in force designed to counter sex dis-
until 1976
crimination. Now there are two inter-related Acts, the Equal Pay Act 1970
and the. Sex Discrimination Act 1975, which have both become operative
simultaneously.
The, Equal Pay Act provides that women are to have equal pay in three
circumstances. The first is when they are doing ‘like’ work. If the jobs are
not identical, but the differences in job content are not significant or,
though significant, do not recur frequently (for example, a man would lift
heavy Weights once a month), then it is like work’. The second is where an
‘

official job evaluation study (covering perhaps about

a third of jobs so far)
has been made and this rates the work as equivalent to men’s work. The

third case is where a collective bargaining agreement has been made be-
employer and trade union which provides different rates for men and
tween
women; any such agreement can be referred to the Industrial Arbitration
Board so that any offending clauses are removed.
A woman who believes that she is not getting equal pay has to make a
the tribunal that her
claim to an industrial tribunal. She will have to satisfy
that, the onus
work is the same as or similar to a man’s. Once she proves
that there are material differences between
is then on the employer to prove
v

woman’s other than sex, which constitute a

the man’s situation and the
awarded them: an
genuine reason for the difference in the treatment
be where the woman
obvious example of a material difference would
but the man worked regular night shifts. If the woman
worked day shifts,
may include up to two years’
wins she is awarded compensation which
arrears of pay.
The Act
.

applies not only to basic pay but to other matters m her con-
.

436 Civil Rights and Freedoms

 tract of employment. It therefore may extend also to overtime pay, bonus
payments, sick pay schemes, health insurance, holiday pay, and length of
holidays, luncheon vouchers, other fringe benefits and rest periods pro-
vided for in her contract. A successful claimant will be also awarded the
appropriate cash damages to compensate her for having been deprived of
any such benefit.
The Sex Discrimination Act 1975 covers much more ground than the
Equal Pay Act. Like the Equal Pay Act it applies to employment, but if the
complaint is about money under a contract of employment, the Equal Pay
Act governs the matter. Its concern on employment is with every aspect of
an employer’s relations with his workers. It may be his recruiting policy
(say advertising only for boy school-leavers), his advertisements for
vacancies, arrangements for interviewing, training methods, selection for
promotion or transfer, lay-offs, redundancy or dismissal. Complaints about
matters other than money, such as company cars or cheap loans, fall
within either Act. Trade unions and employment agencies are aiso within
the net of the 1975 Act. A printing union operating where there is a closed
shop cannot keep a male preserve by barring women from the union.
As the title of the Act indicates, its business is discrimination. This it
defines under four heads treating a woman less favourably than a man on
:

account of sex conversely treating a man less favourably than a woman

;

(maternity excepted!); treating a married person less favourably, on

grounds of marriage, than a single person; and fourthly, victimization
because someone has invoked either of the Acts. Indirect discrimination is
also outlawed when tests are applied which appear neutral but place one
sex (or married people) at a disadvantage; for example, all clerks must be
at least 5 ft 8 in. tall. Complaints about discrimination in employment and
training are made to an industrial tribunal which may award compensation
up to a present maximum of £5200.
The 1975 Act also affects education. It is unlawful for those responsible
for an educational establishment - other than single sex institutions (in-
cluding school governors and university governing bodies) - to dis-
criminate on grounds of sex in admissions policy - no medical school can
lawfully operate a quota system for girls - or require higher A-levels from
them, or in the benefits and facilities offered. A
local education authority
may not provide worse science laboratories in its girls’ schools than in its
boys’ schools. Other matters where sex discrimination is outlawed include:
the provision to the public of goods, facilities or services, including facilities
offered by building societies, insurance companies, banks, credit institu-
tionsand H.P. companies; restaurants, public houses and places of enter-
tainment; local authorities and transport authorities. The disposal of
residential or business premises is affected. These changes in the law affect

Citizens, Aliens and Others 437

many common business practices, such as making the husband sign the
H.P. contract when the wife, who has a good job of her own, is buying it,
or the building society that looks askance at spinster borrowers. Pubs are
not allowed all-male bars; hotel cocktail bars cannot deny admission to
unaccompanied women. Local authorities cannot throw out of her council
flat the separated wife who can pay the rent.
Complaints under the head-
ings in this paragraph lie to the county court.

The Act has, of course, been the occasion for the biggest glut of feeble
jokes and sneers for years, and almost all of them based on ignorance of
its provisions. Of course it has exceptions for all
the obvious situations;

roles in theatre and on films, the physical contact jobs like friskers and
corsetieres, lavatory attendants and Santa Claus. Equally obviously,
the

Act does not law relating to tax or social security - men still do
affect the

not qualify for a retirement pension at sixty.

Another innovation of this Act is the establishment of the Equal Oppor-
tunities Commission. This has power to conduct formal investigations into
any person it believes to be discriminating unlawfully. It may compel him
to give evidence or to produce documents. It may apply to court for an
injunction, disobedience to which would be a contempt of court in various
circumstances. It may have served a non-discrimination notice against
someone it is satisfied is discriminating, and who has not successfully

appealed against it; within five years it may seek an injunction to prevent
his continuing to discriminate. It may also do so against someone whom an
individual has successfully sued for discrimination.
It may itself sue an individuafand seek an injunction if his unlawful dis-

crimination proved. If someone publishes an advertisement which in-

is

dicates an intention to discriminate unlawfully, it may seek to prevent him

by obtaining an injunction. Betty Lockwood and her fourteen com-
missioners have been vested with unprecedentedly wide powers. In effect
they are expected to see that the law is complied with, even though in-
dividual victims do not themselves choose to seek its protection. Had the
Act merely left it to aggrieved individuals to sue, its impact might have
been negligible. The Commission has the chance to unearth sex discrimina-
tion in all the areas covered by the Act, not only employment, to investigate
where it has suspicions and to confront offenders with the prospect of im-
prisonment for defying a court order to desist from discriminatory prac-
tices. The effectiveness of the Act rests with the Commission.

438 Civil Rights and Freedoms

 Chapter 20
Personal Freedom

Fundamental rights

‘Now, most foreign constitution-makers have begun with declarations of

rights. For this they have often been in no wise to blame.’ 1 Here Dicey
seems almost as patronizing as Mr Podsnap of Our Mutual Friend: other
countries ‘do - 1 am sorry to be obliged to say it - as they do’. But he
was
at least more restrained than his mentor, Jeremy Bentham, to whom
the
French revolutionary Declaration of the Rights of Man was ‘rhetorical
nonsense - nonsense upon stilts’. There is indeed something peculiarly
exasperating about a broad affirmation of fundamental human rights
unaccompanied by any machinery for giving them effective legal protec-
tion. This is what Dicey had in mind: ‘The Habeas Corpus Acts declare
no principle and define no rights, but they are for practical purposes worth
a hundred constitutional articles guaranteeing individual liberty.’ 2 Had he
been alive in 1 948, he might have added ‘ or a thousand Universal Declara-
tions of Human Rights’.
The traditional legal approach to civil liberties in Britain can be summed
up in three propositions. First, freedoms arc not to be guaranteed by state-
ments of general principle. Secondly, they are residual. Freedom of public
assembly, for example, means the liberty to gather wherever one chooses
except in so far as others are legally entitled to prevent the assembly from
being held or in so far as the holding or conduct of the assembly is a civil
wrong or a criminal offence. To define the content of liberty one has
merely to subtract from its totality the sum of the legal restraints to which
it is subject. Thirdly, for every wrongful encroachment upon one’s liberty

there is a legal remedy awarded by an independent court of justice. Ubi jus ,

ibiremedium .

These are still the formal legal foundations of most of our civil liberties.
Those foundations do not necessarily make for the best of all possible
worlds, even in the United Kingdom. If the constitution of Northern

1. Introduction to the Study of the Law of the Constitution (10th edn), p. 198.
2. ibid., p. 199. Sec also Jennings, The Approach to Self-Government , p. 20. See
generally de Smith,' The New Commonwealth and its Constitutions, pp. 161-77.

Personal Freedom 439

Ireland had been equipped from the outset with more detailed guarantees
against religious discrimination, coupled with efficacious machinery for
their enforcement, it is just conceivable - one cannot put it more highly -
that the worst of the recent troubles might have been averted. 3 If the
American constitutional Bill of Rights had been transported to Britain
along with Marshall Aid in the late 1940s, our laws relating to police
power? of interrogation, search and seizure, legal aid for persons suspected
or accused of crime, obscene publications, passports and the delimitation
of electoral constituencies might have been more satisfactory though more
uncertain. For the American Bill of Rights has reasonably effective
machinery for judicial interpretation and enforcement of its provisions. Its
terms would also have made it more difficult for Parliament and the Gov-
ernment to nationalize industries and implement town and country plan-
ning policies; it might have led to more criminals escaping justice; it would
surely have struck down some of our recent immigration legislation.
Objections to effective constitutional guarantees of human rights may be
still more vehement than objections to pious platitudes. Effective guarantees

obstruct governments from doing what they want to do and are expected
to do. They are therefore said to be undemocratic because they obstruct
fulfilment of the will of the people as expressed by their elected representa-
tives. They lead to ‘government by judges’, if the constitution is hard to
amend. There will be political appointments to the bench, and public con-
fidence in the impartial administration of justice may dwindle. Justiciable
guarantees and prohibitions induce delay and uncertainty, because poli-
ticians will not be sure what they are entitled to do until the judges have
told them; they engender a litigious spirit ; they are irreconcilable with our
ancient traditions; they arc, moreover, unnecessary.
These objections cannot be disregarded. However, three comments can
be made:

1. It is possible to have a bill of rights enacted as an ordinary statute

without constitutional entrenchment. Canada adopted this course in 1960.

Federal legislation was to be so construed and applied as to conform to the
Canadian of Rights except in an emergency or unless an Act expressly
Bill

stated that was to have effect notwithstanding the Bill of Rights. Its overt
it

impact was not at first impressive. The courts held that it did not prevail
over subsequent inconsistent Acts of the Federal Parliament. But it served
as a guide to interpretation and legislative draftsmen were at pains to con-
;

form to the standards it laid down. Its indirect effect on the content of
legislation may have been considerable. In 1969 the Supreme Court of
Canada gave the Bill of Rights a boost, holding that it rendered inoperative

3. For constitutional guarantees in Northern Ireland, see ch. 30.

440 Civil Rights and Freedoms

a discriminatory provision of a pre-1960 Federal Act relating to Red
Indians4 and indicating that it would have made no difference had the Act
been passed after 1960.
2. The United Kingdom Government is a party to the European Con-
vention for the Protection of Human Rights and Fundamental Freedoms. 5
The terms of the Convention have not been enacted as part of United
Kingdom law, but the United Kingdom is bound by international to
observe them. There is machinery for interpretation of the Convention but
none for direct enforcement. Persons claiming to be aggrieved by a breach
of the Convention may petition the European Commission of Human
Rights, an international body of jurists, which investigates the complaint
and publishes a report. If the complainant has made out a case against
a signatory, and no friendly settlement can be reached, the matter will go
to a Committee of Ministers; if necessary it may then be referred to the
European Court of Human Rights which may award damages to the
aggrieved party against the offending government. 6 This self-imposed
international obligation, coupled with the prospect of adverse publicity
arising from well-founded complaints to the European Commission, means
that the content of our legislation and also administrative practice is in-
fluenced in much the same way as Canadian federal legislation is influenced
by the existence of the Bill of Rights.
The Convention is formulated in fairly detailed language, specifying the
conditions under which a guaranteed right can be abridged. There is no
blanket guarantee of freedom of speech, which can never mean what it
appears to say; nor is there any guarantee of ‘due process of law’ which can
mean anything a judge thinks fit. Thus, freedom of expression is qualified
by a number of provisos: the State may license broadcasting and cinemas;
such restrictions on freedom of expression may be imposed ‘as are neces-
sary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or
4. R
v. Drybones [1970] S.C.R. 282 (Can.).
.

For the main text of the Convention - it has been supplemented by Protocols -
5.
see Cmd 8969 (1953). The literature on the Convention and its interpretation is now
very extensive. See J. E. S. Fawcett, The Application of the European Convention on
Human Rights A. H. Robertson, Human Rights in Europe.
;

6. The United Kingdom Government accepted the individual right of petitioning the
European Commission and the compulsory jurisdiction of the European Court in 1966.
7. The introduction of immigration appeals legislation was probably expedited by

petitions by would-be Commonwealth immigrants to the European Commission; and

the decision to discontinue methods of interrogation in depth in Northern Ireland may
also have been influenced by doubts as to their compatibility with the European
Convention, cf. p. Commission reported
411, note 40. In 1976 the that these interroga-
tions violated Art. 3 regarding inhuman treatment and torture.

Personal Freedom 441

rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judi-
ciary’ (art. 10). The implications of due process of law are spelt out in the
form of detailed specification of the lawful grounds for deprivation of
liberty, safeguards for persons detained pending trial, the basic require-
ments of a fair hearing in criminal and civil proceedings, and a guarantee
of freedom from unfair discrimination. Derogation from some rights and
freedoms is permissible in time of grave emergency, but only ‘to the extent
strictly required by the exigencies of the situation’ (art. 15). No derogation
from certain rights (for example, freedom from torture or inhuman or
degrading punishment or treatment) is permissible at all.
3. In the last decade the constitutions of a large majority of newly inde-

pendent and partly self-governing Commonwealth countries have been

equipped with full-scale entrenched bills of rights, based on the general
pattern of the European Convention. 8 During its declining years, the
Colonial Office moved from apathy or hostility towards this idea and began
actively to press it on colonial politicians. The unmentionable became
indispensable. What was obnoxious to the Westminster model is now the
glory of Westminster’s export models. Perhaps, after time-honoured all,

Anglo-Saxon attitudes towards constitutional guarantees of fundamental

rights have been slightly exaggerated. True, in many developing Common-
wealth countries the guarantees exist - if they survive at all - only on
paper. Yet nobody reading the judgments of the Judicial Committee of the
Privy Council in two recent appeals (holding invalid a Maltese ministerial
circular restricting freedom of the press, 9 and discriminatory citizenship
legislation in Sierra Leone 10 ) can doubt that there is something to be said
in favour of restricting legislative and administrative competence by
constitutional guarantees and prohibitions.
Since 1974 there has been much discussion in Britain about a Bill of
11
Rights, sparked off by Scarman L.J.’s Hamlyn lectures. The Government
has published an analysis of the advantages and difficulties of general
legislation to protect human rights with particular reference to the sug-
gestion that the European Convention on Human Rights should be in-

8. The beginnings of the trend are explained and analysed in de Smith, op. cit.,
ch. 5.
9. See Olivier A.C. 115.
v. Buitigieg [1967] 1
10. Akar v. of Sierra Leone [1970] A.C. 853. With these two decisions there
Att.-Gen.
should be studied the remarkable judgment in Liyanage v. R. [1967] 1 A.C. 259
(Ceylon; implied prohibitions read into a constitution not containing a wide range of
guarantees).
11. English Law - The New Dimension. See also Zander A Bill of Rights ? and Lord
Lloyd of Hampstead (1976) 39 Mod. L. Rev 121. .

442 Civil Rights and Freedoms

 12
corporated into United Kingdom law . The critical question is how much
power to strike down legislation in conflict with a Bill of Rights would
Parliament be prepared to give to the judiciary?

Legal restraints on the liberty of the person

A typical bill of rights in a Commonwealth country’s constitution 13 will

provide that no person shall be deprived of his personal liberty save
as authorized by law and on specified grounds: unfitness to plead on a
criminal charge; sentence by a court for a criminal offence; committal for
contempt of court; detention in pursuance of any other court order, or
to bring him before a court, or on reasonable suspicion of having com-
mitted or being about to commit a crime; custody for care and protection,
in the case of an infant; detention to prevent spread of certain diseases;
detention for mental illness, drug addiction, alcoholism or vagrancy; de-
tention for illegal immigration, or to secure deportation or extradition; or
detention under a reasonably justifiable order restricting his movements or
place of residence. With the exception of the last, these are roughly the

grounds on which deprivation of personal liberty may be based in

English law.
The constitution will go on to lay down minimum safeguards for persons
detained, arrested or tried on criminal charges. They must be brought
before a court without undue delay. If they are not going to be tried within
a reasonable time, they must be released on bail. They and their property
are not to be arbitrarily searched. Persons unlawfully detained are entitled
to compensation. One charged with a criminal offence must be given a fair
hearing before an impartial court. He is to be presumed innocent till proved
guilty. He is to be informed as soon as is reasonably practicable of the
offence with which he is charged ; he must be given proper defence facilities,
including the free assistance of an interpreter if needed. He cannot be sub-
jected to retroactive, inhuman or degrading punishment. He cannot be
compelled to give evidence at his trial ; nor in general can he be tried twice
for the same offence.
This is, an outline sketch of some basic principles of English
in effect,
criminal law and procedure, transposed into a constitutional text. In Eng-
land the most important legal inhibitions on personal liberty consist in the
powers and duties vested in those entrusted with the task of investigating
and detecting crime. To these we shall give special attention, though other
matters will also be introduced.

12. Legislation on Human Rights with particular reference to the European Convention
(1976).
13. See, for example. Constitution of Jamaica (S.I. 1962, No. 1550; Schcd.), ch, 1.

Personal Freedom 443

Powers of arrest

Unfortunately no branch of English law is more obscure or complex than

that relating to powers of arrest 14 The general common-law principles

.

have been partly codified by statute but hardly clarified 15 .

To lay hands on another against his will and without lawful justification
16
is an assault Unlawful detention (including arrest) is false imprisonment.
.

Both are crimes and civil wrongs. In what circumstances, then, are the
detention and arrest of suspected criminals justified by law?
The police have no general power to detain suspects for questioning 17 ,

or even to require suspects or witnesses to accompany them to a police

18
station or to give their names and addresses or to indeed answer any
compel anyone to attend for an identity parade 19 Specific
questions, or to .

powers may be conferred by individual Acts, or in certain circumstances at

common law. If a police officer decides to arrest a person on a criminal
charge, he must normally obtain an arrest warrant from a magistrate by
information supported by a sworn statement. The warrant must specify
the name of the person to be arrested and general particulars of the
offence,, A general warrant, not naming the person to be arrested or failing
20
to give adequate particulars of the offence, is illegal at common law .

Arrest warrants are hardly ever issued to persons other than police officers;
21
and they are issued only in respect of arrestable offences punishable
(subject to various statutory exceptions) with a maximum of at least five

years’ imprisonment. If the issue of the warrant is outside the magistrate’s

jurisdiction but is prima facie valid on its face, a constable executing it is
22
protected from civil liability .

An arrest involves an element of compulsion, though not necessarily

physical seizure; a mere request by a constable that a person accompany

14. For an excellent general account of police powers, see Harry Street, Freedom ,
the Individual and the Law (4th edn), ch. 1. For more detailed analyses of powers of
arrest, sec Glanville Williams [1954] Crim. L. Rev. 6, 408, 508; [1959] Crim. L. Rev.
73, 155; Thomas [1962] Crim. L. Rev. 520, 597; [1966] Crim L. Rev. 639. .

15. Criminal Law Act 1967, s. 2.

16. Though cf. Donnelly v. Jackman [1970] 1 W.L.R. 562 (note 54).
R. v. Lemsatef [1976].
17.
See Glanville Williams (1950) 66 L.Q.R. 465. The general rule is subject to
18.
certain exceptions. Sec, for example, Metropolitan Police Act 1839,
s. 63.

19. Sargant [1966] Crim. L. Rev. 485."

20. Leach v. Money (1765) 3 Burr. 1692, 1742. See
also Wilkes v. Wood (1769)
19 St. Tr. 1030.
19 St. Tr. 1406 (search warrant); Entick v. Carrington (1765)
'
21. This expression has replaced the term ‘felonies*; Criminal Law Act 1967, Part I,

and does not include common law offences.

22. Constables’ Protection Act 1750.

444 Civil Rights and Freedoms

 :

him to a' police station isnot an arrest. 23 In effecting an arrest, no more

physical force must be used than is reasonably required; otherwise the
arrest becomes an actionable assault.
Special difficulties arise in ascertaining the legal grounds on which an
arrest may be effected without a warrant.
Any member of the publicmay arrest without warrant
1. One who is, or whom he reasonably suspects to be, in the act of com-
mitting an arrestable offence.

2. Anyone who is, or whom he reasonably suspects to be, guilty of an

arrestable offence, where such an arrestable offence has been committed 24 ,

A constable may arrest without warrant anyone whom he reasonably

suspects to have committed an arrestable offence, even though no such
offence has in fact been committed. 25 He
has a defence, in such circum-
stances, to an action for false imprisonment, provided thn! he had reason-
able grounds for thinking such an offence had been committed. No such
defence is available to a private person (for example, a store detective) who
mistakenly but reasonably believes that an arrestable, offence has taken
place.
26
A
constable also has power to arrest without warrant anyone
whom he reasonably suspects to be about to commit an arrestable offence. 27
A member of the public is entitled to use reasonable force 4
in the prevention
of crime’, or in effecting or assisting in the ‘lawful arrest’ of offenders or
suspected offenders. 28 Given the uncertainty about the degree of force
justifiable to prevent crime and the meaning of a lawful arrest - this in-
cludes arrest for specified arrestable offences (but few members of the
public will carry the list in their heads) and arrest for breaches of the peace
committed in one’s presence (but even the term ‘breach of the peace’ has
an uncertain meaning apart from acts of violence to the person) - it is
obviously risky for the citizen to take a suspected offender into custody.
To respond to the request of a police officer to help him apprehend a

Booth [1969] 2 Q.B. 216. See, however, Wheatley v. Lodge [1971]

23. Alderson v.
1 W.L.R. 29 (defendant lawfully arrested although he failed to realize, because of
deafness unknown to the police officer, that he was being required to go to police
station under arrest), cf. R v. Inwood [ 1973] 1 W.L.R. 647.
24. Criminal Law Act 1967, ss. 2(2), (3). There may be reasonable suspicion justifying
arrest although there is not yet prima facie proof of guilt: Hussien v. Chong Fook Kam
[1970] A.C. 942.
25. ibid., s. 2(4). See also the consideration of common-law authority in Barnard
v. Gorman [1941] A.C. 378 and Wiltshire v. Barrett [1966] 1 Q.B. 312.
26. Walters v. Smith ( W. H.) &. Son Ltd [1914] 1 K.B. 595.
27. Criminal Law Act 1967, s. 2(5).
28. ibid., s. 3; or of persons ‘unlawfully at large’: this category includes not only
escaped prisoners but certified mental patients.

Personal Freedom 445

criminal may evince public spirit but does not confer immunity from
On the other hand, to refuse compliance
liability if the arrest is unlawful.

with such a request without lawful excuse when two or more persons are
actually committing a breach of the peace is an indictable common-law
misdemeanour. 29
If these prerequisites of a valid arrest are present, the arrest will still not
be lawful unless, at the time of making the arrest, reasonable efforts are
made to communicate to the person to be charged the grounds on which
he is being taken into custody. He does not have to be told the technical
name of the offence in question; nor is it necessary to say anything to him
if he is caught red-handed or is otherwise obviously aware of the facts

giving rise to his arrest or if it is reasonable to think that announcing one’s

presence before seizing him would cause him to run away from the scene;
nor does one have to shout the reasons to a person who, unknown to one-
self, is deaf. The purpose of requiring communication, where practicable,

is to enable the person arrested to clear himself by explanation at the first

opportunity. 30
A person who is unlawfully arrested may use reasonable force to free
31
himself, and possibly (though this is uncertain) a man may use such force
to free his unlawfully arrested child. 32 But although passive submission
may not be required by law, active resistance is apt to be perilous, because
a court may hold that excessive force has been used, and not every mis-
taken arrest by the police is unlawful.
Since 1974, Prevention of Terrorism Acts have been in operation with
the aims of banning the Irish Republican Army and allied organizations,
and of excluding from Great Britain any terrorists who might use violence
33
for political ends. Police are empowered to arrest without warrant on
reasonable suspicion of terrorism. They are given powers to detain suspects
pending investigation for two days at their discretion. The Home Secretary
may authorize a further five days’ detention.
29. R. v. Brown (1841) Car. & M. 314.
Leachinsky [1947] A.C. 573; John Lewis & Co. v. Tims [1952]
30. See Christie v.
A.C. 676. For a marginal case, where a person was held to have been lawfully arrested
although he was given the wrong legal ground for his arrest, see Gelberg v. Miller [1961]
1 W.L.R. 138; the facts constituting the reason for his arrest were, however, apparent

to the defendant, and he could have been arrested for an offence arising out of those
facts. See also R v. Kulynycz [1971] 1 Q.B. 367 (original arrest wrongful, no proper
.

reason having been given, but error rectified while defendant still in custody). Contrast
R. v. Holah [1973] 1 W.L.R. 127 (wrong reason given for arrest; conviction quashed).
31. As in Kenlin v. Gardiner [1967] 2 Q.B. 510.
32. The point was left open in R. v. Fennell [1971] 1 Q.B. 428 (mistaken belief by
father not a ground for using force when son in no danger of injury). See also Devlin
v. Armstrong [1971] N.I. 13, a case of exercising force in resisting police.
33.The current Act is the Prevention of Terrorism (Temporary Provisions) Act
1976.

446 Civil Rights and Freedoms

Bail

A person taken into custody on a criminal charge must be brought before

a magistrates court as soon as practicable. 34 He may be remanded in
9

cut
tody or on bail pending further proceedings by way of summary
trial

preliminary hearing, committal for trial on indictment or

appeal’
Release on bail may be granted by a police inspector following arrest
without warrant, 35 or by magistrates or by a High Court judge. The
powers of magistrates and judges to refuse release on bail have been cur-
tailed by the Bail Act 1976. There is now a statutory presumption in favour
of bail for an accused in custody who has not yet been convicted. He must
be remanded on bail (whether or not he has applied for it) unless the court
is satisfied that there is an unacceptable risk that if he wciere * ™^ on bail
1 1

he would fail to surrender to custody of commit an offence while on bail,

or interfere with witnesses or otherwise obstruct the course of justice. 35

Before being admitted to bail, the person arrested may be required to

produce sureties for his appearance and other relevant conditions may be
imposed. An accused can no longer be asked to provide a recognizance, to
37
be forfeited should he not surrender for trial. Instead the Act introduces
38
a new offence of absconding while on bail. If he is refused bail or objects
to the conditions under which it is offered, he must be told the reasons, and
of his right to apply to a High Court judge, who has power to admit to bail
39
or vary the conditions under which it has been offered.

40
Binding over to be of good behaviour or to keep the peace

A person convicted of crime may, instead of being sent to prison, be bound

over. This power is ancillary to the exercise of criminal jurisdiction
(Justicesof the Peace Act 1968, s. 1(7)) and does not presuppose the con-
viction of the person bound over. Alternatively, a bind-over order may be
34. John Lewis & Co, v. Tims (above) (whether brief detention of suspected shop-
lifterbefore delivering her to police custody was false imprisonment; held dependent on
the reasonableness of the duration of the prior detention
in all the circumstances).
of police custody
See also Dallison v. Caffery [1965] 1 Q.B. 348 (reasonable duration
after arrest but before charge); Magistrates’ Courts
Act 1952, s. 38(4).
35. Magistrates’ Courts Act 1952, s. 38. For granting
of bail by police to persons
under seventeen, see Children and Young Persons Act 1969, 29; Criminal
s. Justice

Act 1972, s. 43.

36. Section 3.
37. Section 3(2).
38. Section 6.
39. Criminal Justice Act 1967, s. 22.
40. See generally Glanville Williams, ‘Preventive Justice
and the Rule of Law
[1970] Comb,
(1953) 16 Mod. . Rev. 417; David Williams, Keeping the Peace , ch. 4;
L
L.J. at 103-6; [1963] Public Law 441; D. A. Thomas, Principles of Sentencing, pp.

215-17. The subject is unusually complex.

Personal Freedom 447

made by way of preventive justice. Under section 91 of the Magistrates’
Courts Act 1952 the court may, on the complaint of X, bind Y over to
enter into a recognizance, with or without sureties, to keep the peace or to
be of good behaviour towards X. No such order may be made unless the
complaint is properly proved. Magistrates also have a general power under
the Justices of the Peace Act 1361 to bind persons over to be of good
behaviour or to keep the peace; this power may be exercised without
a formal complaint, and in the course of other proceedings, though if the
order is to keep the peace, some threat to the peace must be disclosed by
41
the evidence adduced. If the person against whom an order is made refuses
to give the required undertaking, or refuses or is unable to offer sureties for
his conduct, he can be sent to prison for a period of up to six months even
though he has committed no crime. Because such an order is not a con-
viction, no appeal against the merits of the decision lay till one was pro-
42
vided by statute in 1956. Binding-over orders have been used not only to
restrain political agitators from repeating or encouraging violence or from
43
inciting other persons to break the law but also to prevent persons from
behaving in a way likely (though not intended) to provoke others to com-
44
mit breaches of the peace, and to inhibit the activities of transvestites,
prostitutes, protestors against nuclear weapons and increased car-parking
charges, and gentlemen who peep into ladies’ lavatories and bedrooms.

Obstructing the police in the execution of their duty

Under section 51 (3) of the Police Act 1964 (substantially reproducing the
wording of an Act of 1885) it is an offence, punishable with up to a
month’s imprisonment, wilfully to obstruct a constable in the execution of
his duty. It will be considered further in the context of the law of public
meeting, but the case law tells us something, albeit in discordant language,
45

about the duties of the police. The general duty of the police is to preserve

41. See generally R . v. Aubrey-Fletcher ex p. Thompson [1969] 1 W.L.R. 872. The

,

party against whom an order is made must first be given an opportunity to argue

against it: Sheldon v. BromfieldJJ. [1964] 2 Q.B. 573.

(appeal on
42. Magistrates’ Courts (Appeals from Binding-Over Orders) Act 1956
bind-over made^without
the merits to quarter sessions, now the Crown Court). But a
jurisdiction may be quashed at common law by the High Court on
an application for
v. Aubrey-Flctchcr above) and appeal lies by case
R stated on a question
certiorari .
( ,

example, Beattie
of law to a Divisional Court of the Queen’s Bench Division: see, for
V. GUlbanks (1882) 9 Q.B.D. 308.
43. For example, Lansbury v. Riley [1914] 3 K.B. 229; Wilson,
Cases and Materials,

p. 400.
44. Wilson v. Skcock ( 1949) 65 T.L.R. 4128, approved in Aubrey-Fletcher s case,

above.
45. pp. 507-9.

448 Civil Rights and Freedoms

public order and secure due observance of the criminal law; and they can-
46
not divest themselves of these obligations They have other specified .

statutory duties and numerous powers. The courts have attempted to

strike a balance between facilitating the proper discharge of the
functions

of the police on the one hand and the maintenance of individual liberty on
the other. Police powers and duties for securing p'ublic order have been
widely interpreted; the police have a duty to break up public gatherings
where serious disorders occur and to prevent reasonably apprehended
breaches of the peace, and a refusal on the part of a member of the public
to desist when called upon to do so is an obstruction of a constable in the
execution of his duty
47
Again, unreasonable use of the highway amounting
.

to a public nuisance or wilful obstruction should be stopped by the police,

and it will be an offence to refuse to comply with a police instruction to dis-
perse
48
In these circumstances the police have an implied power to arrest
.

without warrant; but it would seem that there is no general power of arrest

merely for wilful obstruction of the police

49
though a summons may be ,

issued. Obstruction of police investigations into suspected crime is not

necessarily an offence although the police may be acting in the general
execution of their functions. Deliberately attempting to prevent the appre-
hension of one guilty of an arrestable offence, or wasting the time of the
police by making allegations one knows to be false, are separate statu-
tory offences
50
To give other offenders prior warning of the approach of
.

the police so as to enable them to escape detection is a wilful obstruction

51
of a constable in the execution of his duty and the same is probably true
,

52
of the deliberate destruction or removal of relevant evidence or having ,

an extra drink in order to frustrate a breathalyzer test that is about to be

53
administered by a police officer to oneself or giving misleading statements
,

while under police interrogation. But it has been held not to be an offence

46. See generally R. v. Metropolitan Police Commissioner ex p. Blackburn [1968]

,

2 Q.B. 118: ch. 17.

47. Duncan v. Jones [1936] 1 K.B. 218; pp. 507-9. See also Piddington v. Bates [1961]
1 W.L.R. 162.
48. Tynan v. Balmer [1967] 1 Q.B. 91. See also Celberg v. Miller [1961] 1 W.L.R.
153 (power to arrest for highway obstruction in the Metropolitan area, and see
generally Highways Act 1959, s. 121(2)). See further p. 488, note 23.
49. Gelberg v. Miller (see above).
50. Criminal Law Act 1967, ss. 4 5(2).
51. Hinchlifje v. Sheldon [1955] 1 W.L.R. 1207; Betts v. Stevens [1910] 1 K.B 1;

contrast Bastable K.B. 59 (warning of speed trap).

v. Little [1907] 1

52. Though cf. R. v. Waterfield and Lynn [1964] 1 Q.B. 164 (attempt by police
officers to prevent motor car suspected of involvement in serious offence from being
driven off, held not part of their duties). See criticisms of that decision in Chani v.
Jones [1970] 1 Q.B. 693 at 707-8.
53. Dibble v. Ingleton [1972] 1 Q.B. 480.

Personal Freedom 449

 54 reasonable
simply to refuse to answer police questions or to resist with
55
force detention for the purpose of being so questioned.
Nor do police
officers have a general licence to enter upon private
premises without the
56
occupier’s permission in order to investigate suspected crime.
Even if they
is withdrawn,
enter with permission, they become trespassers once consent
to effect a law-
unless they have entered in pursuance of a valid warrant or
breach of
ful arrest
58
or for the prevention of a reasonably apprehended
justification
the peace 59 or under other, ill-defined, conditions furnishing
60
for entry. The general duty to investigate suspected crime
imports powers
guilty of an
limited in scope; and a member of the public is not inevitably
making more difficult for the police to exercise
offence by deliberately it

.those powers or effectively to discharge this general duty.

Police interrogation: a note

As we have noted, detention for questioning is unlawful except where it

amounts to a lawful arrest; and a person interrogated by the police is not

obliged to say anything. Moreover, confessions of guilt are inadmissible

in evidence at a criminal trial if procured by duress or material induce-
ments, and other admissions detrimental to an accused are sparingly
admitted. The accused is not required to give evidence at his trial.
The American constitutional Bill of Rights provides that no one shall
*
•

be compelled to be a witness against himself, that an accused shall have

the assistance' of counsel, and generally that due process of law shall be
observed. In 1963, the United States Supreme Court held that consti-
tutional guarantees had been infringed where the state had failed to furnish
61
an indigent accused with counsel at his trial for felony. It then went on
to quash the conviction of a man who had not been allowed access to
62
a lawyer while he was under police interrogation in custody. Then, in the
Miranda case, it held that a person detained for questioning had to be
of his right to consult a lawyer; that, if he was
informed by the police
’
"54. Rice v. Connolly [1966] 2 Q.B. 414.
55. Kenlin v. Gardiner [1967] 2 Q.B. 510 (a case of alleged assault
on the police).
Contrast Donnelly v. Jackman [1970] 1 W.L.R. 562 (where the police officer had
merely touched his assailant on the shoulder with a view to questioning him).
56. For example, Davis v. Lisle [1936] 2 K.B. 434; p. 459 below.
57. See the general discussion oflegal principle in Robson v. Hallett [19 6^ 2
Q.B. 393.
Law Act 1967, s. 2(6).
58. See Criminal
I 59. Sawkins [1935] 2 K.B. 249; see pp. 489-90, below.
Thomas v.
60. R . v. Prebble (1858) 1 F. & F. 325 (constable turned persons out of public
house at landlord’s invitation; resistance to him held to be an assault, but not an
assault committed while he was executing his duty, because there was no nuisance or
danger of a breach of the peace).
61. Gideon v. Wainright 372 U.S. 335 (1963).
62. Escobedo v. Illinois 378 U.S. 478 (1964).

450 Civil Rights and Freedoms

indigent, he had to be told that counsel would be provided for him;
that if
he then asked for one, interrogation was to stop till the lawyer arrived*
and that if interrogation nevertheless proceeded in the absence of counsel'
a very heavy burden would lie on the prosecution to show that the
consti-
tutional right to counsel had been waived. 63 In any event the constitution
indirectly imposed on the police the duty to tell a person in custody of
his
right to remain silent.
English law does not go so far in restricting methods of police interro-
64
gation. The procedure to be followed is prescribed partly by the ex-
clusionary rules of evidence indicated above, and partly by a set of rules
laid down by the Queen’s Bench judges, supplemented by administrative
directions.
The Judges’ Rules (and administrative directions) 65 are not rules of strict
law in the ordinary sense. They are ‘rules for the guidance of the police*.
Non-compliance does not render statements by an accused person inad-
missible in evidence, but the court has a discretion to exclude evidence thus
obtained if to admit it would be oppressive or otherwise unfair. 66 The de-
tails of the rules and directions need not be examined here, but they are
designed to ensure first that interrogation shall not be oppressive, secondly

that statements 'to the police shall be voluntary, and thirdly that a person
shall be notified, by formal cautions, that he is not obliged to say anything
in answer to questions when (i) the police have reasonable grounds for
suspecting him to be guilty of an offence and again (ii) when they charge
him or tell him that he may be prosecuted. Normally questions should not
67
be put after stage (ii). At every stage of a police investigation a person
must be allowed access to a solicitor, provided that this is unlikely to im-
pede the processes of investigation or the administration of justice. The
police have no positive duty to notify a person who is under interrogation
but not in custody that he is entitled to consult a lawyer. 68 At least in form,
the ‘right to be silent’ enjoys better protection under the American case
law than under the Judges’ Rules. A defence lawyer on the spot will tend
to advise his client to say nothing to the police in the first instance.
In 1972 the Criminal Law Revision Committee, in a substantial and

63. Miranda v. Arizona 384 U.S. 436 (1966). Contrast R. v. O'Connor [1966] S.C.R.
619 (limited scope of guarantee of right to counsel under Canadian Bill of Rights).
64. There is a valuable comparative study of American and Commonwealth (in-
cluding English) law on these matters by H. J. Glasbeek and D. D. Prentice in (1968)
23 Cornell L. Rev 473. And see Gooderson (1970) 48 Can . Bar Rev . 270.
.

65. Practice Note (Judges’ Rules) [1964] 1 W.L.R. 152.

66. See R:v. Ovenall [1969] 1 Q.B. 17; R. v. Prager [1972] 1 W.L.R. 260.
67. cf. R. v. Collier [1965] 1 W.L.R. 1470.
68. And are apparently not at all forthcoming, in general, in proffering the informa-
tion or in facilitating access to a solicitor: Zander [1972] Crim L. Rev .
. 342.

Personal Freedom 451

 69
radical report, proposed fundamental
changes in the English law of
evidence and procedure in criminal cases. One of these changes
would
permit a criminal court to draw adverse inferences from the defendant’s
failure when being interrogated by the police to mention a fact
which he
afterwards relied on in court and could reasonably have been expected to
mention at the time. No action has been taken to implement any of the
various recommendations.

Habeas corpus and other remedies

A person subjected to invalid or excessive physical restraint may exercise
self-help, sue or prosecute for assault or false imprisonment. If he is
prosecuted without reasonable or probable cause and for improper
motives, he may sue for damages for malicious prosecution.
The most celebrated safeguard of the liberty of the subject is the pre-
70
rogative writ of habeas corpus. Traceable beyond Magna Carta, it was
used in pre-trial proceedings in the form of a
first command addressed to
a royalofficial to bring before one of the King’s courts the body of a person

whose presence was needed as a defendant or witness. In the fourteenth

century the modern function of the writ emerged: to require a person
having custody of a prisoner to bring him before the court together with
grounds for detention. The court could then test the legality of the de-
tention and direct release if the imprisonment was found to be unlawful. It
came to be used by private persons against executive officers; but until the
Petition of Right 1628 it was not available to a subject to secure his release
from detention by the King’s special command. 71 The Habeas Corpus Act
1679 made the writ an efficient remedy in criminal cases by providing
stringent safeguards against lengthy imprisonment without trial. Time
limits were laid down for entering a return to the writ, and for producing
the prisoner before a superior court if there were prima facie grounds for
supposing the imprisonment to be unlawful; the court was empowered or
required to admit to bail or provide for speedy trial if detention were
founded on a criminal charge; heavy financial penalties were imposed on
72
judges wrongfully refusing to issue the writ, on gaolers evading service or
69. Cmnd 4991 (1972). The Report has received severe criticism on the
grounds
that the expansion of public powers recommended would have to be
accompanied by
better safeguards for the suspect.
edn). Appendix 1,
70. Sec de Smith, Judicial Review of Administrative Action (3rd
on the term * prerogative’ writ.
71. Darners case (1627) 3 St. Tr. 1, such detention being a lawful exercise of
prerogative. .

sections have
72. s.This section of the Act is still in force. Some of the other
10.
amended or indirectly superseded by new statutory provisions (or the
been repealed,
granting of bail and the expedition of trials, cf. R. v.
Campbell[ 19591 1 W.L.R. 646.

452 Civil Rights and Freedoms

compliance with the writ (for example, by moving the prisoner from one
gaol to another or overseas), and on persons recommitting a prisoner
already discharged on an application for habeas corpus. An Act of 1816
extended some of these provisons to civil cases, and empowered the court
to inquire into the truth of the return mad$ to the writ. 73
The modern law of habeas corpus 74 is governed partly by statute, partly
by case law and partly by Rules of the Supreme Court. 75 An application is
made to a Divisional Court of the Queen’s Bench Division or, if no such
court is then sitting, to a single judge of any division, even at his private
house. Habeas corpus applications have priority over all other business.
The application is to be made by or with the concurrence of the detainee
unless he is incapable of consenting, in which case a relative, guardian or
friend may apply on his behalf. It must be accompanied by an affidavit
showing why his restraint is unlawful. If prima facie grounds are demon-
strated, the person who ordered the detention or who has actual custody
(for example, a prison governor, the officer in charge of a police station,
an immigration officer, the Serjeant at Arms, the superintendent of a
mental hospital, or a Minister) must then show cause, on a date fixed by
the court, why the writ should not issue to release the detainee. Pro-
duction of the record of an apparently valid conviction by a court places
on the applicant the burden of proving that the court had exceeded its
jurisdiction. On the other hand, in a case of private detention, or where a
British subject is being detained by the Executive, allegedly on grounds
specified by statute, the onus of proving that there existed facts justifying
the detention rests on the custodian. 76
In general, habeas corpus cannot be used as a device for impeaching
the correctness of a determination made by a court of competent juris-
diction, the only appropriate means of redress being appeal; 77 though not
78
all decisions on habeas corpus are reconcilable with this principle. On
habeas corpus applications made by persons committed by magistrates for
extradition or rendition as fugitive offenders, the court will not substitute
its own opinion for the magistrate’s on the question whether there is a

prima facie case, but it may award the writ if satisfied that his conclusion

73. The history of habeas corpus is traced by Holdsworth, History of English Law,

vol. 10, pp. 108-25. See also Jenks (1902) 18 L.Q.R. 64.
74. The only significant form of the writ now used is called habeas corpus ad sub-
jiciendum.
75. Especially R.S.C. Ord. 54.
76. R. v. Brixton Prison Governor ex p. Ahsan [1969] 2 Q.B. 222. Contrast Ureene v.
,

Home Secretary [1942] A.C. 284, a wartime preventive detention case.

77. Ex p. Hinds [1961] 1 W.L.R. 325. The court may admit to bail on an application
on a criminal matter.
78. Amnon Rubinstein, Jurisdiction and Illegality , pp. 105-16, 178-86.

Personal Freedom 453

 t

on the facts as found was such as no reasonable magistrate properly

directing his mind have reached 79 or if it disagrees with
to the issues could
his finding that the offence was not of a political character. 80 The scope of
review will in practice vary according to the context. The courts have given
82
short shrift to alien deportees 81 and wartime security suspects; they have
closely scrutinized the legality of the detention of British subjects in peace-
time conditions; 83 they have flinched from questioning the validity of a
Speaker’s warrant alleging contempt of the House of Commons in general
terms, even though the inadequacy in law of the true grounds for
commitment have been notorious. 84
Applicants for habeas corpus in recent years have mostly been persons
in detention for the purpose of extradition, deportation or implementation
of a refusal to admit as an immigrant. The introduction of an immigration
appeals system has stemmed 85 the flow by providing an alternative remedy.
The abolition of conscription for military service and the creation of a
Courts-Martial Appeal Court have almost ended applications made by
persons complaining that they are not subject to military law or that
courts-martial have exceeded jurisdiction. 86 A new procedure for determin-
ing child custody cases has rendered habeas corpus applications almost
superfluous. Alternative remedies do not necessarily exclude the right to
apply for habeas corpus, but they make recourse to the writ less frequent.
Unusual cases of paramount importance may yet arise; others may follow
the 1974 example of Mr Miihench and seek the writ to challenge the
87
validity of the police detaining for questioning. It was on a habeas corpus

application that slavery was declared illegal in England. 88

Successive applications and appeals

It used to be thought that an unsuccessful applicant could renew his

application before each superior court and judge in turntill his funds ran

79. See R. v. Brixton Prison Governor, ex p. Armah [1968] A.C. 192, especially at
229-35, per Lord Reid, conceding that the scope of review is not confined to strictly
jurisdictional grounds.
80. See pp. 429-30.
81. For example, Venicoff's case [1920] 3 K.B. 72.
82. For example, Greene's case, note 76; and p. 505.
83. For example, Ahsan's case, note 76.
84. Sheriff of Middlesex's case (1840); p. 317.
85. See ch. 19.
86. cf. pp. 201-2.
87. The police eventually charged Miihench two hours before the time fixed by the
judge for the police to show cause why he should not be released.
88. Somerset v. Stewart (1772) 20 St. Tr. 1 (Negro slave brought to England;
released though slavery still lawful in the territory from which he came).

454 Civil Rights and Freedoms

out or he obtained a favourable ruling. 89 No appeal lay from a decision
to grant habeas corpus except in cases of private civil detention
(for
example, child custody), or against a refusal of habeas corpus in a criminal
cause or matter.
In 1958 one Hastings, who had been sentenced to a term of imprison-
ment and had appealed unsuccessfully against his conviction, tried to take
advantage of the supposed rule permitting successive applications. He
sought habeas corpus on the ground that his conviction was incorrectly
drawn up and therefore invalid. The Divisional Court of the Queen’s Bench
Division dismissed his application. He renewed his application before a
differently constituted Divisional Court, and then before a Divisional
Court of the Chancery Division. But it was held that all these courts were
manifestations of a single High Court if there was such a rule as the appli-
;

cant had urged it only permitted renewed applications before different

90
courts not different judges,
,
In 1960 the law was restated by statute: no
application for habeas corpus can be made on the same grounds to the
same court or judge or any other court or judge unless fresh evidence is
adduced. 91
The Administration of Justice Act 1960 reformed the law relating to
habeas corpus appeals. In civil matters the right of an unsuccessful appli-
cant to appeal to the Court of Appeal and thence, with leave, to the House
of Lords was retained, but the same rights were extended to the respondent
where the application had been granted. In criminal matters (for example,
extradition), a single judge may issue habeas corpus, but if minded to
refuse he must refer the case for hearing by the Divisional Court. From
a decision by the Divisional Court to grant or refuse an application in
92
a criminal matter an appeal lies, with leave cither of that court or of the
House of Lords, direct to the Lords at the instance of the applicant or
respondent. 93 A curious feature of this type of appeal is that if the detainee
is discharged on his original application, and the respondent’s appeal is

89. See especially Eshugbayi Eleko v. Government of Nigeria [1928] A.C. 459. This
view was aptly criticized by R. F. V. Heuston (1950) 66 L.Q.R, 79.
90. Re Hastings (No. 1) T1958] 1 W.L.R. 372; Re Hastings (No. 2) [1959] 1 Q.B. 358;
Re Hastings (No. 3) [1959] Ch. 368. Possibly successive applications to individual
judges could be made in vacation.
91. Administration of Justice Act 1960, s. 14(2). The fresh evidence must be relevant
and admissible: Ex p. Schtraks [1964] 1 Q.B. 191.
92. An application by a compulsorily detained mental patient is deemed to be in

respect of a criminal matter.

93. Possibly this change in the law is attributable to the problems created by the
decision in R. v. Board of Control ex p. Rutty [1956] 2 Q.B. 109. See Harry Street,
,

Freedom , the Individual and the Law (4th edn), p. 41.

Personal Freedom 455

 successful, theformer detainee is nevertheless immune from recommittal
unless the court below,having been notified of the respondent’s intention
to appeal, makes an order for his remand in custody or temporary release
on bail.

Territorial scope

Habeas corpus not issue from the High Court to Scotland or Northern
will
94
Ireland or, in general, in respect
of detention on foreign soil. It will not
issue to a dependent territory where there is a court competent to award
and supervise the execution of the writ 95 but may issue to a colonial-type
,

96
protectorate Scots law has developed its own procedures to secure re-
.

97
lease frpm wrongful imprisonment .

Emergency powers
In wartime there provision for preventive detention of enemy aliens and
is

security suspects. These powers

will be briefly considered in a later
98
chapter . Powers of detention in Northern Ireland will also be mentioned
separately."

Habeas corpus and damages

Unlawful detention is false imprisonment. Consequently a person released
on habeas corpus will normally be entitled to recover damages in tort
against the persons responsible for his detention. To the general rule there
is a limited range of exceptions. For example, the custodian may have
a special statutory defence to an action for damages if he acted in good
faith. Moreover, a person whose initial arrest was wrongful may be en-
titled to nominal damages for false imprisonment although he is sub-
sequently convicted and cannot obtain release on habeas corpus.

Privacy and search

100
Offensive invasion of personal privacy is not yet recognized in English
94. Re Keenan {1972) 1 Court of Appeal assumed, it is
Q.B. 533. In this case the
thought erroneously, that habeas corpus was a discretionary remedy, cf. Yale [1972A]
Canib. L.J. 4. But Northern Ireland courts have jurisdiction to award habeas corpus.
95. Habeas Corpus Act 1862; Sir Kenneth Roberts- Wray, Commonwealth and
Colonial Law, pp. 612-15.
96. Ex p. Mwenya {I960] 1 Q.B. 241.
97. See J. D. B. Mitchell, Constitutional Law (2nd edn), pp. 339-41.
98. ch. 23.
99. ch. 24.
100. The primary source is now the Report of the Committee on Privacy (Cmnd
5012 (1972)). Appendixes I and J to the Report consider the law in England, Scotland
and overseas countries. The text above is concerned only with English law. The
Committee’s terms of reference excluded invasions of privacy by the police and
government olhcials.

456 Civil Rights and Freedoms

law as an independent tort.
101
An intrusion into one’s private affairs may
indeed constitute the torts of defamation, trespass, nuisance, conspiracy,
injurious falsehood, breach of copyright or passing off, depending on the
circumstances f or if it tends to prejudice the outcome of pending judicial
proceedings it may be a contempt of court. Some intrusions on privacy are
criminal offences - for example, using an electronic eavesdropping device
in breach of the Wireless Telegraphy Act 1949; sending out unsolicited
advertisements for sex manuals;
102
conspiracy to commit a trespass on
another’s property. 103 An injunction and possibly damages can clamed
for certain forms of breach of confidence
104 —a civil wrong which has a
capacity for development. But there is no legal redress available to one
whose past life is mercilessly publicized, or who is accurately photographed
in embarrassing circumstances, or whose conversations are deliberately
recorded by mechanical or electronic devices in the absence of conspiracy,
trespass or breach of the 1949 Act. The inviolability of the mails is appar-
ently subject to a power vested in the Secretary of State to issue warrants*
for the interception of postal communications.
105
The Home Secretary
also issues warrants to the police, and to members of the Security Service,
to tap telephone conversations for the detection of crime (including, of
106
course, breaches of the Official Secrets Acts) and possibly other pur-
108
poses; 107
these practices are still partly shrouded in mystery. Even if
109
such an interception has no lawful basis, a person aggrieved has no legal
remedy in the absence of an interference with his proprietary rights.
Moreover, evidence obtained by an eavesdropping device is admissible in
so, indeed, is evidence procured as a result of an
110
criminal proceedings;
101. The Committee, by a majority, took the view that the concept of breach of
privacy was loo amorphous to justify the creation of a new statutory tort except where
damage was caused by the disclosure or other use of unlawfully obtained information.
102. Unsolicited Goods and Services Act 1971, s. 4.
103. Provided that the invasion of the public domain or some damage beyond the
nominal is intended: Kamara v. Director of Public Prosecutions [1974] A.C. 104.
104. For example, Argyll v. Argyll [1967] Ch. 602; Attorney-General v. Jonathan
Cape Ltd [1976] Q.B. 752, Crrmd 5012 (1972), pp. 295-9.
105. cf. Post Office Act 1953, s. 58(1), presupposing the existence of the power but
not conferring it. See also Post Office Act 1969, s. 80.
106. For which purpose there is a statutory power to intercept overseas telegrams
and
cables: Official Secrets Act 1920, s. 4. Apparently such messages are regularly
read by
security officers before dispatch.
107. Sec generally Street, op. cit., pp. 41-7.
108. Only weakly penetrated by a Report of a Committee of Privy Councillors in
1957 (Cmnd 283). See further Marshall, Comment [1967] Public Law 261 and p.

464, note 18, below.

109. It is hard to believe that thisis an exercise of prerogative power, cf. p. 116.

But authorized by a Secretary of State, telephone tapping could hardly constitute an

if

olTcncc of dishonest diversion of electricity (Theft Act 1968, s. 13).

1 10. R. v. Maqsood All [1966] 1 Q.B. 688.
Contrast Katz v. V.S . 389 U.S. 347 (1967).

Personal Freedom 457

 unlawful search which is a trespass; 111 the only safeguard against the ad-
mission of such evidence lies in the discretion of the court to reject it
because of the objectionable manner in which it was acquired.
Given these principles, the law governing police powers of search
assumes a lesser degree of importance. 112 In practice the rules governing the*
permissible limits of police search are as obscure as those relating to arrests
without warrant; and recent decisions have further obfuscated the issues.
Powers of search and seizure ancillary to a valid arrest are exercisable
by the police. It seems that they may search the person arrested and detain
property in his possession 113 and probably other property on the premises
occupied by him if they have reasonable grounds for believing it to be
material evidence of an offence, of a like nature to that for which he is

arrested, committed by that person or another with whom he has been

associated. 114 The common-law rules have never been made entirely clear.
The police have power for the purpose of effecting a lawful arrest under
the Criminal Law Act 1967 to enter (by force if need be) and search any
place where the person to be arrested is or is reasonably suspected to be. 115
Police officers and immigration officers have certain exceptional powers to
stop and detain persons without effecting any arrest, for the purpose of
search or examination. 116
In the celebrated case of Entick v. Carrington (1765) 117 it was held that
a general warrant issued by a Secretary of State to arrest a named person
for sedition, and to search for and seize his papers, was illegal and could

111. Kuruma v. R. [1955] A.C. 197; King v. R. [1969] 1 A.C. 304 (notwithstanding
a constitutional guarantee of freedom from unreasonable search). Contrast the position
in the United States: Mapp v. Ohio 367 U.S. 643 (1961).
112. See generally L. H. Leigh, Police Powers in England and Wales.
113. This was accepted obiter by all members of the Court of Appeal in Chic Fashions
( West Wales) Ltd v. Jones [1968] 2 Q.B. 299 at 312, 316-17, 320.

114. This general proposition is put forward tentatively on the basis of the review
of common-law doctrine in the Chic Fashions case and Ghani v. Jones [1970] 1 Q.B.
693 (see below) though in neither case was there an arrest at the relevant time. See
also the often criticized decision in Elias v. Pasmore [1934] 2 K.B. 1 64. See also Garfinkel
v. Metropolitan Police Commissioner, The Times , 4 September 1971, [1972] Crim. L.
Rev. 44 (search warrant for explosives; police found none, but held entitled to seize
other documents on the premises indicative of evidence that subversive organization was
involved in criminal conspiracy). Here again there was no arrest of persons concerned.
115. S. 2(6).
116. See, for example. Misuse of Drugs Act 1971, s. 23 (police power to stop and
.search); ImmigrationAct 1971, s. 4; Sched. 1, §§ 2, 16 (detention for examination or
prior to removal) See also Customs and Excise Act 1952, ss. 294-8.
117. (1765) 19 St. Tr. 1030 (described by Keir and Lawson, op. cit., p. 307, as
‘perhaps the central case in English constitutional law’; see to like effect R. F. V.
Heuston, Essays in Constitutional Law (2nd edn), p. 35. See note 19.

458 Civil Rights and Freedoms

 118
not be justified on the ground of State necessity or reasonable suspicion.
An Englishman’s home was his castle. Indeed, the ‘great end for which
men entered into society was to secure their property. That right is pre-
served sacred ... in all instances where it has not been abridged by some
119
public law for the good of the whole.’ As Salmon L. J., a judge noted for
robust assertions of individual rights, recently observed, these words today
have ‘an odd ring - both archaic and incongruous’. If the police have
a common-law power to arrest on reasonable suspicion of ‘felony’ (now
‘arrestable offence’), it is a curious state of affairs if the common law
accords greater protection to property where there is reasonable suspicion
120
that it provides evidence of serious crime.
Here one moves from the theme of personal liberty to freedom of

property - a topic with vast ramifications which we shall not explore.

Powers of entry for the purpose of inspection, testing, survey, levying
execution and distress, taking possession, destruction and demolition are
vested by some 188 different statutory provisions in numerous officials.
Police powers of entry, like administrative powers, are not unfettered:
there is, as we have seen, no general licence to enter or remain on private
121
property in the investigation of a crime. The police can enter premises
without permission for the purpose of preventing or stopping a reasonably
122
apprehended or actual breach of the peace or for effecting an arrest for
123 of a search warrant. Search war-
certain offences, or for the execution
rants may be issued by magistrates or judges under a number of statutes,
some of. them of constitutional importance (for example, the Official
Secrets Acts, the Public Order Act); they domot invariably have to specify
124
the property to be searched for and seized, nor must they always be
ancillary to an arrest. If premises are lawfully searched in pursuance of a

warrant specifying stolen property to be seized, the taking of property not

for retention of papers seized in cir-

118. A ground accepted as one justification
cumstances of doubtful legality in Elias v. Pasmore (above)
at 173 (police entered
offence; they had no search
premises to arrest H under warrant for a seditious
warrant, but impounded papers found there and
used them in a successful prosecution
of E for a similar offence).
119. Per Lord Camden at 1066. See also
Wilkes v. Wood (1763) 19 St. Tr. 1153.
120. Chic Fashions case at 319. See also Lord
Denning M.K. at 313; ‘I see no reason
why goods should be more sacred than persons’; and Diplock L.J. at 316.
Co. v. Bates [1921] 3 K.B. 578;
Davis v. Lisle [1936]
121. Great Central Ply
(No. (1964) 108 S.J. 483.
2 K.B. 434; McArdle v. Wallace 2)
122. As in Thomas v. Sawkins [1935] 2 K.B.
249.

123. Note 112. .

. . .

124. Under s. 26 of the Theft Act 1968, a magistrate may issue a constable a warrant
suspected of being stolen; and a police
to search premises for goods reasonably
to search for stolen goods on
superintendent may give a constable written authority
person icecntly convicted of stealing or receiving.
premises occupied by a

Personal Freedom 459

included in the warrant is normally unlawful; but it appears that reason-
able mistake, and reasonable suspicion that goods not specified have been
stolen and are evidence on a charge of stealing or receiving against the
person in possession or his associates, may justify seizure 125 How far other .

deviations from the authority given by a search warrant are permissible is

far from clear, but State necessity 126 or a general public interest in the de-
tection of crime ought not to be among them. The police, having lawfully
obtained entry, are not entitled to conduct a search of private property,
without a warrant, in order to fish hopefully for evidence of a crime 127 .

But in a recent case the Court of Appeal held obiter 128 that even in the
absence of an arrest or a search warrant, the police, having obtained
access to premises, could take property and detain it for a reasonable time
if they reasonably believed that a very serious offence had been com-
mitted, that the property was the fruit of the crime or the means by which
ithad been committed or material evidence to prove its commission, and
that the person in possession was involved in the crime or that his refusal
to give up the property was ‘quite unreasonable’..
There is a risk that the courts, having formerly leaned over backwards
in their solicitude for private property, may now give too much weight to
the public interest in crime detection and too little to the claims of personal
privacy. That the apprehensions of the police must be shown to be reason-
able a safeguard against abuse of powers; but it is not a particularly
is
129
impressive one, given the reluctance of magistrates to reject assertions
by the police as to the reasonableness of their own suspicions. And there
are obvious dangers in attributing additional powers to the police when
130
a member of the public exercises his liberty to be ‘uncooperative ’.

125. Chic Fashions case (above). Aliter if there is no reasonable ground for suspecting
that the person in possession is implicated (at 321). See also GJiani v. Jones (below);

Theft Act 1968, s. 26.

Pasmore (above), at 173. Invocation of the principle of State
126. cf. Elias v.
necessity to justify the use of improperly seized documents in a prosecution was
given qualified approval in Butler v. Board of Trade [1971] Ch. 680 at 690-91, a case
decided in a different context. See also Ghani v. Jones.
127. Ghani v. Jones [1970] 1 Q.B. 693 at 706 (detention of Pakistani passports
ob-
tained in police search without warrant held unlawful in absence of reasonable
grounds
for believing the
for believing plaintiffs to be implicated in a suspected murder or
documents to be material evidence to prove the offence).
doubted.
128. ibid, at 708-9; R. v. Waterfield and Lynn [1964] 1 Q.B. 164 (p. 462)
often superior judges: see Piddington v. Bates [1961] 1 W.L.R.
164 at 170.
129. And
130. See L. H. Leigh, op. cit., for a critique of recent decisions on police search and
seizure.

460 Civil Rights and Freedoms

 Chapter 21
Freedom of Expression

Bills of rights in modern Commonwealth constitutions include qualified

guarantees of freedom of conscience and religion, freedom of speech and
expression, and freedom of peaceable assembly and association. In practice
these liberties are intimately related. If serious encroachments are made
on any one of them, some or all will be diminished. Of all the basic free-
doms in the world today the most precarious are the rights to express
opinions and associate with like-minded persons for the purpose of
opposing and eventually deposing the government in office. Fortunately
in Britain these political rights, though not formally guaranteed, enjoy
adequate protection in practice. In this chapter we shall consider in outline
the law relating to freedom of expression. In the next we shall deal with
aspects of the law of assembly and association. These areas of the law
intersect but can be treated separately.
Freedom of conscience and religion does not call for an extensive dis-
cussion. Freedom of conscience falls partly within the scope of freedom of
expression, partly under freedom of assembly and association. The law
does not concern itself with individual beliefs or disbelief unless a person
propagates his views in scurrilous terms or in circumstances likely to give
rise to a breach of the peace or in a place to which he is denied lawful
access. There is no compulsory State religion, no obligation to submit to
any form of religious instruction, no religious test for the tenure of public
1
office save in the case of the monarch Religious disqualifications for the
.

franchise and sitting in Parliament had been abolished by the end of

the nineteenth century 2 Not since the sixteenth century have men and
.

women been burnt at the stake as heretics and the worst horrors of the
Inquisition passed England by. No one has yet to be required to make a
public affirmation of his devotion to Chairman Callaghan or Thatcher or

1. See pp. 108-9. Section 1 of the Lord Chancellor (Tenure of Office and Discharge

of Ecclesiastical Functions) Act 1974 declares that for the avoidance of doubt, the
office of Lord Chancellor is and shall be tenable by an adherent of the Roman Catholic
faith.
2. See p. 232.

Freedom of Expression 461

 Compassing or imagining the monarch’s death
to confess his political sins.
a statutory offence, but treasonable conduct must be manifested by
is still
3
overt acts for a conviction to be obtained; ‘the devil himself knoweth not
the thought of man’, and though a person’s state of mind may be an
4

essential ingredient of a specific criminal or civil wrong, the law refrains

5
from imposing sanctions in the absence of a wrongful act or omission.
Potentially subversive political opinions may, however, be a ground for
6 or
preventive detention in wartime, and for dismissal from the civil service
7
removal to a non-sensitive post at the present time.

II

‘Freedom of discussion’, in Dicey’s words, was ‘in England little else than
the right to write or say anything which a jury, consisting of twelve shop-
8
keepers, think it expedient should be said or written.’ It was subject to
no prior restraint. Press censorship had lapsed in 1695. Press libels, more-
over, were triable according to the ordinary law of the land by the
ordinary courts; the rule of law prevailed.
This simple picture, portraying the laws of defamation, sedition and
blasphemy as the main restrictions on freedom of expression, needs to be
modified today. The restrictions, though not oppressive, are multifarious.
Trial of offenders is not always by jury. Moreover, restraints may operate
before any legal wrong has been committed. These prior restraints are not
neatly segregated from offences arising from dissemination. For example,
one needs a licence to transmit a radio broadcast; if one broadcasts with-
out such a licence, one incurs a criminal penalty. Obscene literature can
be seized, condemned and destroyed if such literature escapes suppression,
;

it is still an offence to publish it. A public meeting held on private premises

is a civil trespass if conducted without the occupier’s permission and an

injunction may be obtained to prevent it from being held.

Prior restraints are not all of the same kind. Some are strictly legal pro-
hibitions coupled with a sanction; others are extra-legal and have to be
analysed in different terms. If there is a sanction annexed to disregard of

3. Statute of Treasons 1351; R. v. Thistlewood (1820) 33 St. Tr. 681; Treason Act
1795, s. 1 ; Treason Felony Act 1848, s. 3.

4. Per Brian C.J. in 1477.

5. Misprision (concealment) of treason is still a common-law offence, but mis-
prision of another’s felony has been superseded by section 5(1) of the Criminal Law
Act 1967 which makes it an offence to accept a valuable consideration for concealment
of an arrestable offence.
6. See p. 505.
7. See pp. 202-3.
8. Introduction to the Study of the Law of the Constitution (10th edn), p. 246.

462 Civil Rights and Freedoms

a prohibition, it may range from imprisonment to loss of a licence or
promotion prospects. Such restraints are more easily tabulated -

classified.

Accessibility of media for publicity

I may be at liberty to express an opinion but unable to obtain an audier*

because nobody will let a hall to me for the conduct of a public meetir
or because the competent authority refuses me a permit to hold a meeting
in a public place under its control, or because the police (if no pric*
authority is required by law) threaten to prosecute me for obstruction c J

the highway or a similar offence if I proceed; or the police may simp'-,

assert their power to stop me because they reasonably apprehend a breach
9
of the peace, though by participating in a mass demonstration I may a:
once achieve more publicity and gain a measure of safety in numbers,
I cannot compel newspaper editors to publish my letters, or editors and
publishers to accept my articles and books. If I have the money and
persistence I can have my work printed privately and distributed by post
Provided that it does not contain offensive or obscene material and it is

10
not prejudicial to public safety or security it will be immune from inter-
ception and seizure in the mails. But booksellers and public libraries may
11
refuse to purchase it, and indeed blacklist it. 1 may offer to pay for or

subscribe to the cost of an advertisement for the propagation of my

opinions; newspapers may decline to print it and other bodies owning
12
advertising space are not obliged to display it. I cannot set up a private
broadcasting station to air my opinions to the public at large within the

United Kingdom unless I am awarded a programme contract by the

13
Independent Broadcasting Authority.

14
Censorship and suppression

The Press Executive censorship of the press ended in 1695, to be revived

.

only in wartime. (Early in 1941, under Defence Regulation 2D, the Dally
Worker was suppressed for persistent publication of matter calculated to
-
foment opposition to the successful prosecution of the war it was allowed
9. See ch. 22.
10. Post Office Act 1953, ss. 11, 58, 66.
1 1. See Harry Street, Freedom the
,
Individual and the Law (4th edn), p. 99.

12. See ibid., pp. 114-17, on informal regulation

of advertising.
Broadcasting (Offences) Act
13. See Wireless Telegraphy Act 1949; Marine etc.
1967; Independent Broadcasting Act, 1973.
14. See generally Paul O’ Higgins, Censorship in Britain (1972) for radical criticism

of present law and practice.

Freedom of Expression 463

 to resume publication some months later - and in 1942 the Daily Mirror
received a formal warning following the publication of a cartoon to which
the Government took exception.) The legal requirements as to the registra-
tion of newspapers and the printing of the names of their publishers and
printers in each issue are not substantial restraints.
Offences committed by the publication of material by reason of its con-
tent will be considered separately, but we may note at this point that it is
unlawful for the press to publish the evidence (otherwise than such as is
disclosed by the judge’s summing up or judgment) in divorce and nullity
15
proceedings, or any indecent matter disclosed in judicial proceedings, or
(subject to limited exceptions) information divulging the identity of
16
juveniles involved in court proceedings, or in general except at the de-
fendant’s request, a contemporaneous report of the evidence given at
17
committal proceedings before magistrates.
•
Reference can also be made here to the ‘D’ Notice system. There exists
a nomstatutory Defence* Press and Broadcasting Committee, with a senior
civil servant as chairman; it includes other senior officials, but representa-

tives of the and broadcasting services are in the

press, press agencies
majority amongmembers; it has a full-time secretary, a retired senior
its

officer from the armed services. Its main function is to approve the issue
of ‘D’ Notices, which are confidential letters initiated by government
Departments and addressed to newspaper, periodical and news bulletin
editors, requesting that material not be published because it would have
18
an adverse effect on national defence or security. Non-compliance with
such a request is not an offence in itself, but it may result in a prosecution
19
for a breach of the Official Secrets Acts, compliance with the request
being in practice a safeguard against a prosecution, though an assurance
that an item of information is not covered by a ‘D’ Notice is not
in itself

such a safeguard.
20
Even if disclosure of the information is not a breach

15. Judicial Proceedings (Regulation of Reports) Act 1926, s.

1 See also Domestic
and Appellate Proceedings (Restriction of Publicity) Act 1968.
R. M. Jackson, The Machinery of Justice in England (6th edn), p.
23.
16.
constituted may
Criminal Justice Act 1967, s. 3. Proceedings for the offence thus
17.
Attorney-General. The restrictions
be commenced only by or with the consent of the
do not apply if the defendant is not committed for trial.

18 See generally Cmnd 1681 (1962), ch. 9; Cmnd 3309,

3312 (1967); David’Williams,
Not in the Public Interest p. 80ff. Marshall [1967] Public
, ;
Law 261; Report of the
(Franks) Committee on section 2 of the Official Secrets
Act 1911 (Cmnd 5104 ( 1972)),
also sent
§ 65; Minutes of
Evidence, vol. 2, pp. 241-5, vol. 3, pp. 51-68. ‘D’ Notices are
to book publishers from time to time, requesting non-publication of certain matters
or the submission of manuscripts for security clearance.
19. See pp. 471-3.
Biafra) case, 1970-71 see
20. This was the position in the Sunday Telegraph (or
:

Jonathan Aitken, Officially Secret (1971).

464 Civil Rights and Freedoms

of the Acts, the news medium concerned may be publicly censured and
may find that confidential information formerly supplied to it from official
sources is thereafter withheld.

Broadcasting services

The British Broadcasting Corporation, constituted by royal charter in

1926, provides non-commercial radio and television services. Its func-
all

tions are prescribed by its charter, the current licence and agreement 21
under which it operates, and any directions issued to it by the Home Secre-
tary in pursuance of powers conferred on him by the governing instru-
ments. Under the agreement he is empowered to require the Corporation
to refrain from broadcasting any matter or class of matter at any time. If
the Corporation fails to comply with a valid direction he may revoke its
22
licence.
He enjoys statutory powers of direction in relation to the Independent
Broadcasting Authority, 23 which regulates commercial services provided
by programme contractors. A
number of positive duties (for example,
to broadcast Government announcements but to maintain political im-
partiality) are cast on the BBC and the I BA.
In what circumstances any) can a breach of such duties by the broad-
(if

casting authorities give rise to judicial proceedings ? This question has come
before the courts once, in the important case of Attorney-General ex rel.
A
McWhirter v. IB A 24 concerning the duty of thS IB to satisfy themselves
that so far as possible \ nothing is included in the programmes which
. .

offends against good taste or decency or is likely to ... be offensive to

public feeling’. 25 The court held that it could grant an injunction only if
the decision of the Authority were wrong in law or one to which it could
not reasonably have come. A citizen (as distinct from the Attorney-
General) could not seek an injunction unless he had not time to ask the
Attorney-General to bring the action or give him leave to do so, or pos-
sibly the Attorney-General refuses leave in a proper case. Whether breach
of a particular duty is actionable depends on the nature and wording of the
duty. The duties of the BBC to send out broadcasts ‘efficiently* and of the
IBA to maintain a ‘high quality’ in programmes are so vague that a court
would be reluctant to enforce them. (It is, of course, possible for the
Minister to cancel the BBC’s licence, or to initiate the dismissal of the

21. Cmnd 4095 (1969) sets out the present licence and agreement.
22. Licence, clauses 13(4), 23.
23. Independent Broadcasting Act 1973, s. 21.
24. (1973] Q.B. 639.
25. S. 4(l)(tf).

Freedom of Expression 465

Governors of the BBC by the Crown or himself to dismiss the members of
the IB A. Such drastic action, however, would hardly be conceivable unless
there was direct disobedience of a specific ministerial direction; in the
Republic of Ireland in November 1972 the members of RTE, the equiv-
alent body to the BBC, were dismissed en bloc for refusal to comply with
a direction.) Duties to broadcast Government announcements and to
maintain political impartiality are potentially enforceable in judicial pro-
ceedings by an order of mandamus awarded by the High Court on the
application of the Minister.
The broadcasting authorities maintain their own standards, subject to
formal obligations and ministerial directives, in the presentation of films
and plays and other programmes. 26 As we have seen, they are also included
within the ambit of the ‘D’ Notice system.

Theatres and plays. Till 1968, stage performances were subject to an

authentic form of censorship. No play written after 1843 could be per-
formed under a licence granted by the Lord Chamberlain,
in public except
who could insist on deletions and alterations to the script before giving
his permission. It was a criminal offence to stage a play in an unapproved
form. Power to license theatres was exercised by the Lord Chamberlain
in Central London and Windsor and by local authorities elsewhere. Per-
formance of an unlicensed play, or breach of conditions annexed to the
grant of a theatre licence, could lead to revocation of the latter type of
licence.
Following the report of a joint select committee of the two Houses,
a private member’s bill was introduced to abolish the Lord Chamberlain’s
powders; it became the Theatres Act 1968. Premises still require a local
authority licence if they are to be used for the public performance of a play,
but no condition may be imposed restricting the content of the ‘plays’ to
be performed other than an exhibition of hypnotism. 27 The law relating to
criminal offences and civil wrongs committed in the course of a stage

performance has been redefined. The immediate practical effects of the

Act were an increase in plays dealing with controversial topics such as
homosexuality, the production of nude musicals, and the use of earthier
language than the Lord Chamberlain would formerly have permitted.
2*
Films. Film censorship is a blend of statutory and non-statutory

26. See generally Street, op. cit., pp. 79-95. The B BC has established an independent
Programmes Complaints Commission and the IB A has a Complaints Review Board.
See p. 218.
27. s. 1(2). Conditions may be imposed in the interests of physical safety and health.
An appeal lies to a magistrates’ court at the instance of a person aggrieved by a
licensing decision (s. 14).

28. Street, op. cit., pp. 67-77.

466 Civil Rights and Freedoms

 29
regulation. Cinemas are licensed by local authorities. Conditions may be
attached to the grant of licences, restricting the admission of children
prohibiting the exhibition of films likely to be injurious to m^ndiiv ? ™j
so on. A condition commonly imposed is that no film not approved by the
British Board of Film Censors shall be exhibited without the express con-
sent of the licensing authority. The Board is a non-statutory body consti-
tuted by the film industry; the president appointed by a committee
is

representing the industry after consultation with the Home Office and the
local authority associations, but he is independent of the industry. The full-
time secretary of the Board has, in practice, been its most dominant
figure. Films are classified as ‘IT (suitable for universal exhibition), ‘A’
(no formal restriction, but parents are warned that it may be undesirable
for children under fourteen to be present), ‘AA’ (no child under fourteen
being permitted to be present) or ‘X’ (no person under eighteen being per-
mitted to be present). The Board may refuse a film a certificate altogether,
or grant one only if prescribed cuts are made. A licensing authority cannot
validly fetter its by automatically following the Board’s de-
discretion
cisions
30
though it may them unless exceptional circum-
elect to follow
stances are present. There is nothing, apart from the sanctions of the
criminal law which may be applied to an exhibitor, to prevent a local
authority from allowing a film to be exhibited to which the Board has
denied a certificate or from permitting the restoration of cuts made at the
insistence of the Board. Nor is an authority obliged to permit the exhibition
of a film passed by the Board. It is not uncommon for different authorities
to adopt variant attitudes towards a particularly controversial film.
Having regard to the higher attendance of children at cinemas than
theatres, and to the regularity with which a great number of children and
old people watch television programmes, there is a stronger case for broad-
casting and film censorship than for theatrical censorship. There is, indeed,
an arguable case for censorship of the dissemination of popular written
matter, but this could be enforced only spasmodically or oppressively and
on balance would almost certainly lead to the suppression of meritorious
or innocuous material.

Official documents and As has been indicated,

civil servants* publications.

State papers (including Cabinet documents) are made available to public

scrutiny only after the lapse of thirty years. Records may still be withheld
after that period by the Lord Chancellor, with the approval or at the
request of the relevant Minister, or if they might cause distress to living

persons or their descendants, or if they embody information received under

29. Cinematograph Act 1952.

30. Ellis v. Dubowski [1921] 3 K.B. 621.

Freedom of Expression 467

a pledge of confidence or liable to prejudice current trade promotion or
31
national security.
The former practice whereby whole documents
classes of departmental
relevant to .judicial proceedings could be withheld from disclosure by
virtue of a ministerial objection on the ground that their production would
be injurious tp the national interest has been substantially diminished in
32
the last few years. Moreover, departmental documents must be made
available to the Parliamentary Commissioner for Administration for the
purpose of his investigations.
Any student of central government administration in Britain will be
aware of the difficulty experienced in persuading civil servants to divulge
particulars of internal procedures or the undisclosed reasons for indi-
vidual decisions if any likelihood of his publishing an account of
there is

his research. The ethos generated by the Official Secrets Acts is still
pervasive, though the fog of obscurity is no longer as dense as in the 1950s.
Serving and retired civil servants must obtain official approval of the
manuscript of any book they themselves write before it is published. A
civil servant who writes a controversial letter to the press or gives a broad-
cast interview will be well advised to seek approval in advance; otherwise
he risks contravening service regulations and earning the severe disapproval
of his superiors.

Contempt of court. A news medium proposing to publish material which

would tend to prejudice a fair trialmay be restrained by an injunction in
33
proceedings instituted by the Attorney-General.

Miscellaneous. In 1971 leading American newspapers published extracts

from the ‘Pentagon papers’, a record of top-secret policy discussions about
Vietnam. An attempt by the United States Government to obtain an
in-
rejected by
junction to restrain further publication of the information was
34 with the
the United States Supreme Court. This may be contrasted
the publica-
decision of Widgery L.C .J. in the Crossman Diaries Case that
tion of Cabinet memoirs is a breach of confidence, which may be stopped
35
by injunction, when the public interest demands it.
Prior censorship, and the seizure and destruction of
documents under
legal powers, are the most obvious means of
suppressing freedom of ex-

31. Public Records Acts 1958 and 1967.

32. See especially Conway v. JRimmer [1968] A.C. 910; and pp. 610-13.
273. And see the Report of the
33. Att.-Gen . v. Times Newspapers Ltd [1974] A.C.
Committee on Contempt of Court, Cmnd 5794 (1975).
34. New York Times Co. v. United States 403 U.S. 713 (1971);
The Pentagon Papers
(Bantam Books, 1971); Secrecy and Foreign Policy, eds.T. M. Franck and E.
Weistrand,

ch. 17.
35. Att.-Gen.v. Jonathan Cape Ltd [1976] Q.B. 752; Hugo Young, The Crossman Affair.

468 Civil Rights and Freedoms

pression. The prospect of incurring penal sanctions ex post facto will also
tend to inhibit free expression. So will the foreknowledge that one’s
communications may be intercepted and read or overheard.
Freedom of expression is not an end in itself. Doctrinaire absolutism is an
inept instrument for evaluating the competing claims of the individual and
society. John Stuart Mill, himself a powerful defender of human liberty,
declared: ‘The sole end for which mankind are warranted, individually
or collectively, in interfering with the liberty of action of any of their
number, is self-protection.’ This grudging concession is a starting point,
not the conclusion, of any attempt to define the proper limits of freedom
of expression. But the onus to be discharged by one seeking to justify
the stifling of opinion should be heavier than that cast upon one asserting
the propriety of penalizing its expression after the event. History bears
witness to the insidious effects of the suppression of dissent and the denial
of free interchange of ideas. These effects are all the more insidious when
the fact of suppression is itself suppressed or so concealed as not to be
identifiable.

Ill

The following are the principal wrongs in English law that may be com-
mitted by words or pictorial demonstrations.

Treason and treason felony

These offences overlap. Treason is still punishable with death, treason
felony with life imprisonment. It is treason to conspire or incite to kill or
overthrow the monarch, to levy war against her by raising an insurrection,
36
or to adhere to her enemies in time of war (for example, by broadcasting
propaganda for the enemy ). 37 Incitement to rebellion against the Govern-
ment in the United Kingdom, or a conspiracy to deprive the Queen of her
sovereignty in any part of her dominions, or an invitation to a foreigner
38
to invade any part of them, is also treason felony .

39
Seditious offences

To publish spoken or written words with a seditious intention is a common-

law misdemeanour. A seditious intention has been defined in very broad
terms, including ‘an intention to bring into hatred and contempt, or excite
36. Within or without Her Majesty’s dominions (R. v. Casement [1917] 1 K.B. 98).
37. To beguilty of treason the accused must be a person owing allegiance; on
which
see Joyce v. D.P.P. [1946] A.C. 347; and see pp. 423-5. There
must be overt acts of
disloyalty.
38. Treason Felony Act 1848. Again, only persons owing allegiance may commit
the offence.
39. For good synopses, see Smith and Hogan, Criminal Law (3rd edn), pp. 646-54;
l an Brownlie, The Law Relating to Public Order, pp. 85-90.

Freedom of Expression 469

disaffection against ... the government and constitution either House . . .

of Parliament, or the administration of justice ... or to raise discontent or

disaffection among Her Majesty’s subjects, or to promote feelings of ill-
will and hostility between different classes of such subjects L 40 This could
encompass any forceful criticism of the existing structure of authority
within the State.
In this century prosecutions for sedition have been so few that the
ingredients of the offence cannot be stated with assurance, but it would
seem that there must now be an intent to incite to violence against the
and laws of the State 41 or a section of the community 42 for a
institutions
conviction to be obtained. Nevertheless, in a modern case the Privy
Council held that under the laws of a colony sedition could be committed
without any incitement to violence, 43 and some of the successor govern-
ments to the colonial regimes have used the wide concept of sedition as an
instrument for browbeating their opponents. 44
There are several statutory offences akin to sedition in its broadest
meaning. It is an offence to do any act ‘calculated to cause disaffection’
among the police. 45
Under the Incitement to Disaffection Act 1934, 46 it
is an offence maliciously and advisedly to endeavour to seduce a member

of the forces from his duty or allegiance to the Crown, or to have in one’s
possession, with intent to commit or counsel the offence, literature the
dissemination of which would be such an offence. Prosecutions have been
very rare, and leave of the Director of Public Prosecutions is required. A
search warrant may be issued by a High Court judge in respect of an
offence under the Act. The Act could be used against persons distributing
pacifist literature to members of the forces. Other anti-sedition legislation
still on the statute book includes the Unlawful Oaths Acts 1 797 (successfully

invoked against the Tolpuddle Martyrs) and 1812. 47 In this area of the law,
40. Sir James Stephen, Digest of the Criminal Law (3rd edn), art. 93.
41. R. v. Burns (1886) 16 Cox C.C. 355. See also R . v. Aldred (1909)' 22 Cox C.C. 1,
where the publication had been calculated to incite to violence but it was not made
clear by the judge that an intent to provoke violence had to be established.
42. R. v. Caunt (1947) ( An Editor on Trial, an offensive attack on British Jewry;
jury directed that an intent to excite violence had to be demonstrated). Such an attack
might still be indictable as a public mischief.
43. R. v. Wallace-Johnson [1940] A.C. 231 (Gold Coast).
44. See, for example, G. Ezejiofor, Protection of Human Rights under the Law ,

pp. 194—8.
45. Police Act 1964, s. 53, reproducing earlier legislation. See also Aliens Restriction
(Amendment) Act 1919, penalizing forms of disaffection instigated by aliens.
46. See also Incitement to Mutiny Act 1797; Williams, Not in the Public Interest,
pp. 102-3, 113-14.
47. Partly repealed by the schedules to the Criminal Law Act 1967, which also
repealed most of what remained of the Seditious Meetings Act 1817. See, however,
p. 490, note 36.

470 Civil Rights and Freedoms

restraint in instituting prosecutions, the prospect of a restrictive
direct*l0Q
by a judge and an acquittal by a jury are the effective r "
expression of political dissent.

Breaches of the Official Secrets Acts48

Till 1889 there was no legislation making it an offence to disclose

official
secrets to foreign powers or to other unauthorized persons. The
present
law is contained in the Official Secrets Acts 1911, 1920 and
1939 The
ambit of the Acts is by no means confined to espionage. The
marginal
note to section 1 of the 1911 Act reads ‘Penalties against spying’,
and
makes it an offence punishable with fourteen years’ imprisonment for
any
person, ‘for any purpose prejudicial to the safety or interests of the
State’
not only to engage in specified conduct calculated to be useful to an enemy
but also to approach, inspect or enter a ‘prohibited place’ 49 within
the
meaning of the Act. Nuclear disarmers who approached a military airfield
with the intention of immobilizing it were convicted under this section, 50
although their purpose was not espionage but non-violent sabotage; the
fact that in their opinion they were acting in the true interests of the State
was held to be irrelevant, inasmuch as they were intentionally engaging in
conduct prohibited by the Act and the policy behind the disposition and
use of the armed forces of the Crown fell within the scope of the royal
prerogative and could not be a subject of independent judicial scrutiny. It
is also an offence to refuse to supply information to a senior police officer

as to the commission of an offence under this section. 51 In a prosecution

for the principal offence, the prejudicial purpose may be inferred from the
circumstances in the absence of an overt act; and if information about
a prohibited place is proved to have been obtained or communicated
without lawful authority, the onus of proving that the purpose was not one
prejudicial to the interests of the State is cast upon the accused. 52 For
serious cases of espionage or betrayal of the activities of British agents, the
maximum sentence of fourteen years may be inadequate; the maximum
has been raised not by amending legislation but by indirect means -by
charging accused persons with a conspiracy to contravene section 1, for

48. The leading study is David Williams, Not in the Public Interest. See now Report
of the Committee on Section 2 of the Official Secrets Act 1911 (Cmnd 5104 (1972)) and
Minutes of Evidence in three volumes; these contain a mine of information, much of
itpreviously undisclosed.
49. s. 3 (for example, defence establishments and places used by or belonging to the

Crown and declared by a Secretary of State to be prohibited places).

50. Chandler v. D.P.P. [1964] A.C. 763; criticized by Thompson [1963 ] Public Lav/
201 ; but see Smith and Hogan, Criminal Law (3rd edn), p. 652.
51. Official Secrets Act 1920, s. 6 (as amended by the Official Secrets Act 1939).
52. 1911 Act, s. 1(2).

Freedom of Expression 471

 which there is no limit to the duration of a sentence
upon conviction, or by
sentencing convicted spies to consecutive terms of imprisonment
on sep-
arate counts — and sentences as long as forty-two and twenty-five
years
were imposed in the 1960s.
Under section 2 of the 1911 Act it is an offence punishable with up to
two years’ imprisonment to retain without permission, or fail to take
reasonable care of, information obtained as result of one’s present or
former employment under the Crown or a government contract; or to
communicate information so obtained, or entrusted to one in confidence
by a person holding office under Her Majesty, 53 or obtained in contra-
vention of the Act, to anybody other than a person to whom one is
authorized to convey it or to whom it is one’s duty to impart it in
the
interests of the State; or to receive such information, knowing or having
reasonable cause to believe it has been given in contravention of the Act.
These are wide-ranging prohibitions. It may be an offence under section 2
for a civil servant to pass on, or for a research
worker to acquire from him,
information about internal departmental procedures although the material
has no bearing on security and is not even classified as confidential. This
section is indeed convoluted and abstruse. The Franks Committee which
reported in 1972 described it as a catch-all’ and a ‘mess’. 54 Yet who could
‘

malign a section which creates 2324 separate offences? 55

However, the section has undoubtedly many defects. For instance, it is
not clear whether guilty knowledge (mens rea) has to be proved for un-
authorized communication to be an offence. 56 When is communication
authorized ? What of ‘
leaks ’ by Ministers ? 57 According to official doctrine,
Ministers ‘authorize themselves’ to convey information about matters of
government and administration; civil servants have implied authorization
depending on the nature of their job and the circumstances of the case. All
this is very vague. And in the absence of authorization, when is it my duty
or a journalist’s duty ‘in the interests of the State’ to publicize official

53. This term includes a police officer: Lewis v. Cattle [1938] 2 K.B. 454.
54. Cmnd 5104 (1972), §§ 17, 88.
55. Minutes of Evidence, vol. 2, p. 262 (Appendix to evidence of Bar Council).
56. In the Sunday Telegraph case (1971, unreported; see Jonathan Aitken, Officially
Secret ), where a military officer, a journalist and a newspaper editor were prose-
cuted (but acquitted) in respect of publication of a confidential appreciation of
the Nigerian civil war situation written by a military official at the British High
Commission in Lagos, Caulfield J. directed the jury that mens rea on the part of all
involved in the chain of communication had to be proved. This interpretation is not
universally accepted.
57. The Attorney-General did not prosecute the publishers of the Crossman Diaries
under the Act, apparently because he concluded that the Act did not apply once Mr
Crossman had died; Lord Lloyd of Hampstead (semble) took the opposite view:
Young, op. cit., at pp. 21 and 33.

472 Civil Rights and Freedoms

 information? No answer has yet been produced. What is the
intelligible
policy in instituting prosecutions? The Attorney-General has an absolute
discretion in this matter; the criteria adopted in deciding whether to bring
or authorize a prosecution are nebulous, but fortunately prosecutions have
averaged only about one a year since 1945 and most (but by no means all)
have involved elements of obvious impropriety. But the deterrent effect of
the Act on junior and middle-grade civil servants in particular may be
considerable.
The Franks Committee made detailed proposals for replacing section 2
by a new Official Information Act. They would restrict criminal sanctions
to defined areas of major importance: wrongful disclosures of (i) informa-
tion of major national importance in the fields of defence, security, foreign
relations, currency and the reserves; (ii) Cabinet documents; and (iii) in-
formation facilitating criminal activity or violating the confidentiality of
information supplied to the Government by or about individuals; and the
use of official information for private gain. Mere receipt of protected
information would not be an offence under the Act, but communication by
journalists and others would still be if the author or speaker had reasonable
grounds for believing that it had been conveyed to him in breach of the
Act. Only material classified as Top Secret or Secret (or Defence-Con-
fidential) would be protected in category (i); and before a prosecution
could be brought, the responsible Minister in person would have to certify
that the information was properly so classified at the relevant time.
Although the prosecution would have to prove that the information fell
within the scope of a classified category in the first place, the Minister’s

time of instituting proceedings would

certificate as to classification at the
be binding on the court. There should be an advisory committee (similar
to the ‘D’ Notice committee 58 ) on matters relating to classification.
The proposals, outlined very briefly above, would restrict the ambit of
the criminal law, but were not really radical. There would be no defence,
for example, that the public interest was not in fact injured by a disclosure;
the difficulties and uncertainty inherent in the concept of implied authoriza-
tion would remain; over-classification of information might still occur;
there was no recommendation about giving fuller publicity to official
information along the lines of American or Swedish practice. But they
were a careful attempt to draw lines in an area where cartography is
extraordinarily difficult. They have not been implemented by legislation.

Blasphemy
Like sedition, this common-law misdemeanour has diminished in scope
by judicial interpretation and prosecutions arc extremely rare. Its ambit
58. See p. 464.

Freedom of Expression 473

 has never been clearly determinate; it has been held at various times to
consist in the denial of the truth of Christian doctrine, or the doctrines of
the Church of England, or of the existence of a Deity. Modern judicial
pronouncements support the view that anti-Christian or irreligious argu-
ment is not blasphemous provided that the decencies of controversy are

observed and the language used is not calculated to give rise to a breach
of the peace 59 .

Defamation 60

A defamatoiy statement is one which tends to expose another to hatred,

ridicule or contempt or to causehim to be shunned by reasonable persons.
Defamatory matter consisting of spoken words, or gestures, is slander; in
permanent form it is libel. By statute 61 words used in a broadcast or a
,

public performance of a play are deemed to be libel. The distinction be-

tween slander and libel is of practical importance. In the first place,
although both slander and libel are torts, no action will lie for slander in
the absence of proof of special pecuniary damage, save in a limited range
of situations. Secondly, slander is not of itself a criminal offence. A con-
may be obtained even though the statement was published
viction for libel
only to the person defamed and was true (unless publication was for the
public benefit). A libel may also be indictable, though not actionable as a
tort, if it relates toa class of persons, and possibly if it relates to a dead
person.^ No prosecution against a newspaper proprietor, publisher or
editor may be brought except with leave of a judge in chambers 62 .

For a civil action to lie, the defamatory statement

must have been pub-
lished to a third party. It is a defence that the statement was true, or was
a fair comment on a matter of public interest, or was uttered on a privileged
occasion. No action will lie in respect of an absolutely privileged statement
even if it is false and malicious. Absolute privilege attaches to statements
made in the course of judicial proceedings, proceedings in Parliainent,

59. See especially Bowman v. Secular Society Ltd [1917] A.C. 406. ‘Indecent’ be-
haviour in a place of religious worship (an offence under s. 2 of the Ecclesiastical
Courts Jurisdiction Act 1860) includes interrupting a service by shouting political
slogans: Abrahams v. Cavey [1968] 1 Q.B. 479.
60. For details, see the latest editions of Gatley on Libel and Slander, and the leading
textbooks on the law of tort ( Clerk and Linds ell, Salmond, Street and Winfield and
,

Jolowicz). Only a very brief outline of this complex branch of the law is presented here.
61. Defamation Act 1952, s. 1; Theatres Act 1968, ss. 4, 7.
62. Lawof Libel Amendment Act 1888, s. 8 (permission was given for Mr T imm y
Goldsmith to prosecute the publishers of Private Eye Goldsmith v. Pressdram Ltd
:

[1916] 3 W.L.R. 191 ; see also Newspaper Libel and Registration Act 1881, s. 4 (certain
newspaper libels are triable summarily before magistrates).

474 Civil Rights and Freedoms

parliamentary papers, and to communications between high officers of
State and to fair and accurate newspaper or broadcast reports of judicial
proceedings. Qualified privilege is lost by proof of malice, which is not
easily established. Among the numerous
situations covered by qualified

privilege are fair and accurate newspaper reports of parliamentary pro-

63
ceedings, and of the proceedings of public meetings, local councils and
64
administrative tribunals and inquiries; and communications between
members of the public and M.P.s, and M.P.s and Ministers, on matters
65
person is unintentionally defamed, the innocent
of public interest. If a

publisher himself successfully in an action by making an offer

may defend
of amends (which means the publication of a correction and an apology)
as soon as possible; he must also show that he had acted with reasonable
66
care.
The law of defamation still presents many hazards for the press; and
juries are still apt to make heavy awards of compensatory damages to per-
67
sons defamed by newspapers. Many proprietors and editors of journals
would doubtless welcome a judicial decision such as one delivered in 1964
by the United States Supreme Court, that false and defamatory press
statements about the conduct of a holder of a public office were not
68
actionable provided that the critic was acting in good faith. Justice may
have been done in the particular circumstances of that case, but it would
be deplorable if English law gave a licence for character assassination of
public figures. At the present time some journals achieve a mass circulation
by ‘shocking revelations’ about the private lives of persons in the news.
As was mentioned earlier, there is in general no legal remedy for the
69

improper but non-defamatory invasion of privacy. But a complaint may

70 body with
be made to the Press Council, a non-statutory .investigatory
of representatives of the press,
a legal chairman but composed largely
can do no more than administer a public rebuke. When
and this Council
quite severe, but they
invoked, the sanctions of the law of defamation are

63. Wason v. Walter (1868) L.R. 4 Q.B. 73.

Defamation Act 1952, ss. 7, 16, Schedule, extending the defence
64. See generally
of qualified privilege of libellous newspaper reports. In many of these
in respect
situations qualified privilege will be a defence
only if the newspaper has published,
at the plaintiff’s request, a reasonable
statement by way of contradiction or explana-
tion.
65. See p. 303.

can only be awarded in a limited range of situations.

67. Exemplary damages in tort

Broome v. Cassell &

Co. [1972] A.C. 1027.
68. New York Times Ltd v. Sullivan 376 U.S. 255 (1964).
,

69. See p. 456. _ .

The Press Council Report of the Committee on

Privacy
70. See H. Phillip Levy, ;

Cmnd 5012 (1972)), ch. 7.

Freedom of Expression 475

 are not open to persons ofmodest means actions for defamation cannot
:

be brought in county courts, High Court costs may be extremely heavy

and the legal aid scheme does not extend to such proceedings.

Contempt of court and of the Houses of Parliament 71

In some respect these legal restrictions

on free expression do bear harshly
on journalists and broadcasters. The sub judice rule is strictly interpreted.
Premature disclosure of the report of a parliamentary committee is a con-
tempt of the House in question. A journalist who refuses to divulge
relevant information in his possession, or the source of that information,
in response to demands by members of a select committee (for example, the
Committee of Privileges) or a court or a judicial tribunal of inquiry set up
in pursuance of the Tribunals of Inquiry (Evidence) Act 1921, is guilty of
contempt, and may be sent to prison. 72

Miscellaneous wrongs involving speech or writing

A great number of criminal offences can be committed by the use of

spoken' words or writing. For example, it is an offence to incite another
to commit a crime. A
criminal conspiracy can hardly be effectuated with-
out verbal communication. Intimidating words accompanied by threaten-
ing behaviour may be an assault although there is no physical contact with
the person put in fear. Perjury, blackmail, fraud and attempting to pervert
the course of justice by, for example, interfering with witnesses, all involve
some form of verbal communication. It is an offence to waste the time of
the police by knowingly making a false report; 73 or to pester people with
74
false or offensive telephone calls; or to publish a false description of
75
articles and goods for sale. Among torts, fraudulent misrepresentation,
deceit, slander of title and passing off are essentially verbal misdeeds.

Insulting words and behaviour76

Under a number of local Acts and by-laws it has long been an offence to

use threatening, abusive or insulting words or behaviour in a public place

71. See ch. 14 and pp. 361-2.
of case the offence is analogous to contempt of court: Att.-Gen.
72. In the latter class
v. Clough [1963] 1 Q.B. 773; Att.-Gen. v. Mulho lland [1963] 2 Q.B. 477.
73. Criminal Law Act 1967, s. 5(2).
74. Post Office Act 1969, s. 78.
Trade Descriptions Act 1968.
75.
David Williams, Keeping the Peace pp. 153-69; Ian Brownlie, The
76. See ,
Law
Relating to Public Order, pp. 6-8, 11-14, 160-61, 163.

476 Civil Rights and Freedoms

 with intent to provoke a breach of the peace or whereby a breach of the
peace is likely to be occasioned. 77 Section 5 of the Public Order Act 1936
made this a general offence, and extended it to public meetings. For the
purpose of the offence, a public place includes a highway or any premises
or place to which the public have access, on payment or otherwise. 78 A
public meeting is one held in a public place or one which any section of
the public is permitted to attend, with or without payment; 79 in other
words, it means a meeting that is not private or confined to members of
a particular organization.
In 1963 the maximum penalties for the offence were increased ; 80 in 1965
the offence was extended to the distribution or display of written matter
81
and signs ; and in 1968 to theatrical performances to which the public was
admitted. 82
The importance of the offence is that, measured in terms of prosecutions
and convictions, it is the most significant restriction on freedom of political
expression by speakers and their audiences in contemporary English law.
The word ‘insulting’ is to be understood in its ordinary sense. 83 The
perpetrator of the words or conduct must have either intended to insult
others or been reckless in his behaviour; and it would seem (though this is
not entirely clear) that a person must actually have been insulted by it
Still,no offence is committed under the Acts unless it is likely to cause at
least one reader, listener or observer to resort to violence. But if a speaker
deliberately insults a hostile audience with the result that they are likely to
commit a breach of the peace, it is immaterial that he may not have in-
tended to provoke them to acts of violence or that they would not have
resorted to violence had they been reasonably phlegmatic or decorous
persons. When Colin Jordan, the British Nazi, insulted a hostile audience
in Trafalgar Square, calling them ‘red rabble’ and asserting that Britain
had picked on the wrong enemy in 1939, that international Jewry was the .

real culprit and that ‘Hitler was right’, it was held that he had to take the
audience as he found them; the gist of the offence was public insult, likely

77. See, for example.Wise v. Dunning [1902] 1 K.B. 167.

78. Criminal JusticeAct 1972, s. 33, extending the former definition.
79. Public Order Act 1936, s. 9.
80. Public Order Act 1963 (twelve months or a £500 fine or both on conviction on
indictment). The offence is nearly always tried summarily; the maximum is three
months* imprisonment.
81. Race Relations Act 1965, s. 7. This provision (restating section 5 of the 1936
Act) had no direct connection with race relations. The distribution or display must be
in a public place or at a public meetings.
82. Theatres Act 1968, s. 6.

83. Drurus [1973] A.C. 854 (anti-apartheid demonstration on tennis court

Cozens v.

during Wimbledon championships not an offence, though spectators angered).

Freedom of Expression 477

 and he was con;
in the circumstances to give rise to a breach of the peace,
victed. 84 The not confined to political diatribes; it includes
offence is

abusive language directed against a neighbour in public. 85 However, it is

not enough to show that other people were annoyed or affronted.

Incitement to racial hatred

The scope of thisoffence under section 67 of the Race Relations Act 1976
has already been noted. 86 Leave of the Attorney-General must be obtained
before a prosecution can be instituted the offence is triable summarily or
;

on indictment, and if the defendant elects to be tried by jury on indictment,

the possibility of acquittal or disagreement may be very real. The offence
may be committed only in a public place or at a public meeting or by the
publication or distribution of written matter, butit is unnecessary to prove

a consequential likelihood of a breach of the peace; 87 the perpetrator may

have been preaching to the converted. The gist of the offence is the op-
probrious nature of the words or conduct in question and the feelings of
disgust they are liable to arouse. To this extent the offence is more akin to
the old common law of obscenity than to other modern limitations im-
posed by the criminal law on freedom of expression.

Obscenity 88

The law of obscenity is both complex and controversial. It encompasses

a range of common-law offences, statutory offences, and provisions for
search, forfeiture and destruction. And it bears on the limits of free
expression and the relationship between the law and ideas about morality.
In 1663 indecent exposure, coupled with the projection of urine from a
balcony upon an audience at Covent Garden, was held to be a common-
law misdemeanour. 89 A common-law offence of obscene libel developed
from this bizarre episode. The common-law crime appeared to have been
largely superseded by statute, but in 1961 the House of Lords held that an

84. Jordan v. Burgoyne [1963] 2 Q.B. 744.

85. Ward v. Holman [1964] 2 Q.B. 580.
86. p. 436. See also Theatres Act 1968, s. 5, creating a broadly similar offence for
theatrical performances.
87. If a breach of the peace is likely, a prosecution may be brought under section 5
of the Public Order Act 1936, as amended by section 70 of the Race Relations Act 1976,
without the Attomey-GeneraFs consent.
88. The law is well reviewed by Smith and Hogan, op. cit., pp. 562-75, and Street
op. cit., pp. 1 28-56.
89. R. v. Sidley (1663) 1 Siderfin 168; sub nom. Sydlye's case (1663) 1 Keb. 620,
stating the facts more fully. See also Vagrancy Act 1824, s. 4; Criminal Justice Act

1925, s. 42.

478 Civil Rights and Freedoms

 obscene publication was also indictable as a common-law conspiracy to
90
corrupt public morals and in 1972 it reaffirmed this proposition in a case
where a majority of their Lordships were also of the opinion that a con-
91
spiracy to outrage public decency was an offence. The defences now pro-
vided by the Obscene Publications Acts do not apply to such charges.

Statutory obscenity. Under the Obscene Publications Acts 1959 and 1964
it is an offence to publish an obscene article, or to have an obscene article
for gain. Authors, photographers, artists, publishers^ booksellers and other
distributors may find themselves prosecuted under the Acts. Similarly, it is
an offence under the Theatres Act 1968 to direct or present an obscene
theatrical performance. The Acts do not apply to cinemas which exhibit
obscene films. 92
The test of obscenity under these Acts is similar to that laid down in
a mid-Victorian case, where it was held to be whether the matter in ques-
tion had a tendency to deprave and corrupt those who were open to such
93
influences and into whose hands it might fall. Under the recent Acts, the
prosecution must prove that the matter, taken as a whole would tend to ,

deprave and corrupt persons likely to read or see or hear it; hence a book
is not now obscene merely because it contains a few obscene words or

sentences. However, a magazine or other publication consisting of a num-

ber of separate items may be obscene although only one item falls within
94
that description. But it appears that a person may be convicted under the
Acts even if he had no intention to deprave or corrupt though it is a ;

defence 95 for him to prove that he had not examined the offending article
and had no reasonable cause to believe that publication or possession
would be an offence.
It is also a statutory defence to a prosecution under the Act of 1959

90. Shaw v. D.P.P. [1962] A.C. 220 (the Ladies' Directory case; publication of a
guide to specified prostitutes for prospective clients). There could be a criminal
conspiracy without publication. The assumption by the House of Lords of the role
of custos morum has been widely criticized, particularly on the grounds that the offence
was novel or, at least, obsolescent, and judicial conceptions of corruption of public
morals were unpredictable. No such prosecution can be brought in respect of a
theatrical performance: Theatres Act 1968, s. 2(4).
91. Knuller Ltd D.P.P. [1973] A.C. 435 (agreement to publish advertisements in
v.

the International Times by person seeking homosexual relationships, although such

conduct between consenting adult males was no longer unlawful). Held, also, that
there was an insufficient element of publicity for the offence of conspiracy to outrage
public decency to be committed; but that the latter common-law offence could also
be committed publicly by an individual in the absence of conspiracy.
92. See Attorney-General' s Reference (No. 2) [1976] 1 W.L.R. 710.
93. R. v. Hicklin (1868) L.R. 3 Q.B. 360 (a seizure, not a prosecution).
94. R. v. Anderson [1972] 1 Q.B. 304 (the Oz ‘schoolkids’ issue case).
95. Obscene Publications Act 1959, s. 2(5); Obscene Publications Act 1964, s. l(3)(fl).

Freedom of Expression 479

 that the publication was for the public good in the interests of science,
or learning or other objects of public concern. 96 If a tendency
literature, art
to deprave and corrupt is proved, the defendant is entitled to acquittal if
he can establish this defence on a balance of probabilities. 97 Expert opinion
as to the scientific, literary or artistic merits of the book or article is ad-
missible in evidence on both sides. However, such evidence is not
admissible (save in highly exceptional circumstances 98 on the primary
)
issue ofwhether the article is obscene or not. 99 The courts have scotched
the defence of public good where the plea is that reading the obscene
matter gives psychological and sexual help to the needy, by holding in-
admissible expert evidence about the alleged psychological benefits of
pornography. 100
What, then, is meant by a tendency to deprave and corrupt? And de-
prave and corrupt whom? Judicial pronouncements on these matters have
shown a conspicuous lack of uniformity. Depravity and corruption have
generally been understood to imply the weakening of moral fibre. Nowa-
days a judge, magistrate or jury is unlikely to be persuaded that anything
than the explicit portrayal or description of sexual activity tending to
less
evoke erotic desires and an inclination to imitate what has been described
or depicted is obscene in this sense. Yet this approach raises many prob-
lems. It is almost impossible to establish a causal connection between an
erotic book or film and subsequent conduct, 101 other than masturbation.
(Is this a form of depravity; and if so, should persons be convicted in the
criminal courts for having conduced to it?) Few would disagree with the
propositions that sadism and bestiality are forms of seriously anti-social
conduct, and that the authors and purveyors of works intended to persuade
others to indulge in such practices are not entitled to sympathetic treat-
ment; but the establishment of causal connection is exceedingly difficult.
Between these mild and extreme aberrations there lies a wide range of
sexual acts which many people would not regard as depraved. In the
decisions of magistrates and juries, and the directions of judges, there have
been elements of unpredictability amounting to caprice. In 1928 the Well
of Loneliness a discreetly written literary work dealing with a sad theme
,

of female homosexuality, was condemned as obscene. In the 1960s Fanny

96. 1959 Act, s. 4. See also Theatres Act 1968, s. 3.

97. See R, v. Colder & Boyars Ltd [ 1969] 1 Q.B. 151.
98. As in D.P.P . v. A. & B.C. Chewing Gum Ltd [1968] 1 Q.B. 159 (expert evidence
as to effect on children).
99. R. v. Anderson [1972] 1 Q.B. 304; see also R. v. Stamford [1912] 2 Q.B. 391.
100. R. v. Staniforth [1976] 2 W.L.R. 849.
'
Reports of the Presidential Commission in the United
101. See, for example, the
States (1970) and of the Working Party of the Arts Council in Britain (1969), on
obscenity (The Obscenity Report Olympia Press, 1971). ,

480 Civil Rights and Freedoms

Hill a well-written
, and amusing eighteenth-century erotic work, was con-
demned, and the publishers of Last Exit to Brooklyn a book containing ,

descriptions of male homosexual intercourse and brutal violence but in

a manner calculated to arouse feelings of pity and disgust, were held by
a jury to be guilty of obscene libel J02 but the publishers of Lady Chatterley's
;

Lover (a serious though unconsciously funny novel, liberally interspersed

with four-letter words and descriptions of extra-marital intercourse) were
acquitted 103 and no proceedings had been taken in connection with a book
,

such as Portnoy's Complaint Administrative and police practice had be-

.

come more indulgent as society had become more permissive; but the
outcome ‘of judicial proceedings remained a lottery 104 .

If the tendency of a book to deprave and corrupt is established, it is not

refuted merely because the most likely purchasers would already be de-
praved; they may be capable of being further depraved by reading it 105 .

If, on the other hand, the only person to whom it was shown, for example,

a senior police officer, was unlikely to be depraved or corrupted, there

should be no conviction unless there was an intention to publish to others 106 .

It seems that only if a significant proportion of the persons into whose

hands a book may fall (not merely well brought-up fourteen-year^old

107
girls ) are likely to be depraved or corrupted by it is the offence com-
108
mitted The circumstances of publication or offer for sale are therefore
.

material. An
expensive hard-back book may not offend against the Acts,
though a cheap and easily accessible paperback edition may. Erotic prints
or sculpture in a shop window may offend against them though the same
representations in an art gallery may not. But the matter may still be so
pornographic (for example, photographs of sexually deviant conduct) that
the Act will be contravened despite the fact that display and distribution
have been carefully restricted. Yet if the matter is so disgusting as to cause
aversion or revulsion rather than corruption or depravity, the Acts are not
109
contravened .

102. The conviction was reversed because of a misdirection by the recorder (note 97
above).
103. See C. H. Rolph, The Trial of Lady Chatterley.
104. The problems of the poltceln enforcing the law against ‘hard-core pornography*
are well depicted in /?. v. Metropolitan Police Commissioner, ex p. Blackburn ( No . 3)
[1973] Q-B. 241.
105. D.P.P. v. Whyte [1972] A.C. 849.
106. R. v. Clayton and Halsey [ 1963] 1 Q.B. 163; sec also R. v. Barker[ 1962] 1 W.L.R.
349; 1964 Act, s. 1(3) (b ).
107. cf. R. v. Martin Seeker & Warburg Ltd[ 1954] 1 W.L.R. 1138 at 1 139. Read as a
whole, the direction given by Stable J. to the jury in tl?at case (a charge of obscene
libel at common law) is remarkable for its eloquent common sense.

108. R. v. Colder & Bovars Ltd (note 97 above).

109. R. v. Anderson (note 94). Because the ‘aversion* defence was not put properly

Freedom of Expression 481

 The Acts are not confined to matters of sexual morality. A book extol-
110
ling the pleasures of drug-taking may bean ‘obscene’ publication . So, it
111
seems, may a publication tending to induce violent behaviour ,
but the
112
publication of horror comics is a separate statutory offence .

General. To is a common-law misdemeanour.

outrage decency in public
The be committed not only by conduct, but also, by
offence may
words and pictures 113 If the words or conduct are both insulting and
.

114
likely to cause a breach of the peace, this is a separate statutory offence .

Under a number of local Acts and by-laws, the use of obscene language in
public, the display of obscene signsand other reprehensible forms of public
conduct are also offences. There is obviously a good case for extending the
reach of the criminal law to words, pictures or conduct thrust upon an
unwilling hearer or observer or a captive audience who are likely to be
disgusted 115 though problems of definition will remain. It ought not to be
,

necessary, in such cases, to prove tendency to deprave and corrupt. (The

test of depravity and corruption, taken in conjunction with the ‘aversion’

concept and the defence that publication may still be for the public good,
has left the law in a sorry state. 116 ) Whether the sanctions of the criminal
117
law of obscenity ought to extend beyond such cases at all is questionable .

Meanwhile, juries seem increasingly reluctant to convict either on obscen-

118
ity or indecency charges .

Obscene articles reasonably suspected of being kept for publication for

to the jury, the conviction of the defendants under the Obscene Publications Acts
(though not their conviction under the Post Office Act: see below) was quashed.
1 10. v. Powell [1965] 1 Q.B. 509.
Calder {John) Publications Ltd
111. D.P.P. v. A. B.C. Chewing Gum Ltd [1968] 1 Q.B. 159.
&
1 12. Children and Young Persons (Harmful Publications) Act 1955. No prosecution

under this Act can be commenced without the consent of the Director of Public
Prosecutions.
113. A London cinema proprietor was convicted for exhibiting More About the
Language oj Love even though the G.L.C. had given it an X certificate: D.P.P. v.
Jacey Ltd ; The Guardian 6 June 1975.
114. See pp. 476-8.
115. cf. the Street Offences Act 1959, making it an offence to solicit in public for
prostitution.
116. See criticisms in D.P.P. v. Whyte [1972] A.C. 849 at 861—2, per Lord Wilber-
force,,and by the Court of Appeal in Blackburn {No. 3), n. 105 supra.
117: The tentative suggestion made in the text above is superficially similar to that
put forward in the Longford Report ( Pornography 1972, ch. 22), but the Report goes
,

a good deal farther of obscenity there proposed would extend to

in that the definition
publications in general and the defence of public good would be excluded.
11 g. e.g. the 1976 acquittals of an exhibition of The Language ofLove and a publisher
of Inside Linda Lovelace.

482 Civil Rights and Freedoms

 f

under a magistrate’s warrant. >»Fc

searched for and seized
.

«„ he
gam can
•
:

h b brou ght before the magistrate; theoccupfe

cause »hy .teyshouldno.Uforf.M.Jt,
entitled to PP
available, but there is no provision for trial
IS

Wl
jury. The qua y
of po lice or magisterial
practice.
a e
articles dispatched
through the mails may bed.
Indecent or obscene
TdeSnt example a photograph) maybe
An article (for
tamed and destr y ’. 110 In this context ‘obscene’
'
.
.
ct‘ obscene
indecent for this
putpos

is given its
usual n ^ may be obscene though repulsive,
artic)e
and corrupt, nor is the
^ tendency t0 deprave
>

and there no need is P

121
The imp0 rtation of indecent orobsceae
public good avatlab.
defence of and customs officers may
,
und
works is Prohibited
seize them.
Th ey witWn a month unless the importer ^
forfeiture can be ordered
in which case
.

8 °° d “ "*** “ “* ““
’

“> dct 01 PUb ' iC '

Sfby
a proceeding.
.
A 10S9 s 3 The warrant may be obtained only on

Obscene Publications a constable (Criminal

119.
^ Public Prosecutions or
information laid the 1959 Act can be brought by a member
under
Justice Act lvo /,
s. ^ ^ • i

of the general
public.

120. Post Oflice

quoted with approval
bather to enter the
A
f,(at
3' S
'f.3
water nude
‘ h£
>‘the’ ”
following dictum
the prese nc e of
m
in a
” Q.B. 327, where the court
* v. StanIey [19651 2 Scottish case: For amae
ladies would be indecent,
i

attent ion ofaladytoacertam

but U «uld
member

not necessarily
of his body his

C
be

U
Uns oticrted Goods
obscene. Butifhe^f
conduct would certainly

and
r
V
oc The mattcr mlgh t perhaps be
ive _ immodest;
comparative-
*•
« ** —
Stamford [19721 2 Q.B.
39b
“*•

275-80, Schcd. 7.
s. 64;
Street, op.
Sec also Post Olhce Act
cit., PP*
J 95 .
^ M Commit

28.
[1972] 2 Q.B.

483
Freedom of Expression
 Chapter22
Freedom of Assembly
and Association

Association

Freedom of political association in Britain is subject to three main limita-

tions, neither of which affects movements seeking to operate within the
framework of the existing constitutional order. In the first
place, an agree-
ment to effect an unlawful purpose is a criminal conspiracy.
‘
’
That purpose
need not be criminal in itself, 1 nor need overt acts
be perpetrated in
furtherance of the purpose, but the typical example
of a political movement
being a criminal conspiracy would be one directed
towards the overthrow
of the Government by force. This would clearly be a
seditious conspiracy.
Secondly, there is section 2 of the Public Order
Act 1936, subheaded
Prohibition of quasi-military organizations ’. The Act was
passed mainly
to cope with the situation created by the activities of the
British Union of
Fascists in the 1930s. Under section 2,
an offence to take part in the
it is

control, management, organization or training of a body

which is either
organized or trained or equipped for the purpose of enabling it to usurp
the functions of the police or the armed forces; or organized or trained,
or
organized or equipped, for the use or display of force in promoting any
political object. 2 The offence is punishable, upon conviction on indictment,
with a maximum two years’ imprisonment and fine of £500. No prosecution
can be instituted without the Attorney-General’s consent, which has been
very sparingly granted. In the 1960s, leaders of Spearhead, a neo-Nazi
organization, and of the Free Wales Army, were convicted under section 2.
The Prevention of Terrorism (Temporary Provisions) Act 1976 bans the
IRA altogether (other proscribed organizations may be added) and makes

1. See Shaw v. D.P.P. [1962] A.C. 220 (conspiracy to corrupt public morals);
Knuller Ltd D.P.P. [1973] A.C. 435 (conspiracy to corrupt public morals and,
v.

semble y to outrage public decency); R. v. Kamara [1974] A.C. 104 (conspiracy to

trespass). Contrast R. v. Bhagwan [1972] A.C. 60 (indictment for conspiracy to evade
immigration controls held to disclose no offence, the evasion at the time not being
unlawful in itself).

2. For comment on this section, see Ian Brownlie, The Law Relating to Public Order
pp. 97-9. This book and David Williams’s Keeping the Peace are the leading works
on the topics covered by this chapter.

484 Civil Rights and Freedoms

it an offence to belong to it or to invite others to contribute to its finances

or to make or receive such a contribution 3 To arrange or address a meeting

.

of three or more persons knowing that the meeting is in support of the

IRA or other proscribed organization is also an offence 4 It is also a crime .

for anyone to wear any item of dress or wear, carry or display any article,
so as to cause reasonable apprehension that he is a member of the IRA 5 .

Meetings and processions: prior restraints and preventive measures

It is usually said that there is no ‘right of public meeting’, but that public
6
processions are prima facie lawful . These statements need to be explained
7
and examined .

Clearly there is no right to hold any kind of meeting on private premises

without the consent of the owner or occupier; such conduct will be a tres-
pass. A trespasser may be evicted by the use of such force as is reasonable
in the circumstances. Police officers may render assistance, as private
individuals, to the occupier, but they are not obliged to do so and will
normally refuse, though they have a common-law duty to take such steps
as are reasonably required to quell a breach of the peace and to prevent
a reasonably apprehended breach of the peace. Trespass is a tort, for
which nominal damages are recoverable; if the court considers that the
case is serious enough and that repetition is likely, it may in its discretion

award an injunction against the trespasser at the instance of the occupier.

Disobedience to an injunction is a contempt of court. Conspiracy to tres-
pass is a crime, provided that the invasion of the public domain or the in-
8
fliction of damage beyond the nominal is intended .

Does it make any difference if the premises arc public buildings be-
longing to a local authority? Candidates at elections are entitled to have
access to locally maintained schools and other public halls in order to
hold campaign meetings 9 For the rest, local authorities have an ostensibly
.

free discretion whether to let premises to anybody wishing to hold a meet-

ing there. Since, however, they are public bodies, the exercise of their

3. Section l(l)(aj and (b).

4. Section l(l)(a).
5. Section 2.
6. See, for example, A. L. Goodhart (1937) 6 Camb . L.J. 161 ; E. C. S. Wade (1939)
2 Mod. L. Rev. 177.
7. See especially Brownlie, op. cit., ch. 12, for criticism of the usual analysis of the
law relating to meetings in public places.
8. R. v. Kamara [1974] A.C. 104. The Law Commission has proposed that conspiracy

should no longer be an offence unless the agreement was to commit a crime: Report
on Conspiracy and Criminal Law Reform Law Com., No. 76, 1976.
,

9. Representation of the People Act 1949, ss. 82, 83, Schcd. 7.

Freedom of Assembly and Association 485

 discretionary powers is potentially subject to judicial review. A decision
not to allow any political meeting, or a particular class of political meeting,
to be held on any premises under their control might possibly be held to
be an unlawful fetter on their own discretion. Again, the validity of a
decision to refuse the promoters of a particular meeting permission to
conduct it on such premises might conceivably be impugned as being based
on legally irrelevant considerations or as being so arbitrary that no
10
reasonable body of persons could have reached it .

Is there a general right or liberty to hold demonstrations or meetings

in public open spaces? To conduct such a meeting is not a criminal or
civil wrong merely because a Minister, a local authority, a police officer
11
or a magistrate purports to prohibit it unless their prior permission is

required by law. But under a number of local Acts and by-laws prior
permission is needed. For example, the permission of the Secretary of
State for the Environment has to be obtained before a meeting can be held
12
in Trafalgar Square . The right to hold meetings at Speakers’ Corner in
13
Hyde Park is conferred only by statutory regulations . The mere fact that
an open space is dedicated to the public use does not apparently entitle
14
persons to use it If, on the other hand, the
for holding a public meeting .

holding of meetings in such a place is prohibited absolutely or condition-

ally (for example, subject to a need to obtain prior permission in certain
circumstances) by by-laws purportedly made under statutory powers, the
by-laws may
be challenged by a person aggrieved on the ground that they
are ultra vires. A
by-law may be held to be invalid on the grounds of
uncertainty or repugnancy to the general law of the land or unreasonable-
ness, including unfair discrimination; but in practice the courts lean in
favour of upholding local by-laws unless they are very seriously ob-
15
jectionable .

The House of Commons regularly makes a sessional order instructing

the police to keep the streets leading to the Houses of Parliament free from
obstruction to members. This order can have no legal effect outside the
16
precincts of the House , but the Commissioner of Police has statutory
10. cf. Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948]
1 K.B. 223. See also below on by-laws.
11. Beatty v. Gillbanks (1882) 9 Q.B.D. 308; M'Ara v. Edinburgh Magistrates 1913
S.C. 1059.
12. Trafalgar Square Regulations 1952 (S.I. 1952, No. 776), r. 3. cf. Ex p. Lewis
(1888) 21 Q.B.D. 191.
13. It is not a common-law liberty: Bailey v. Williamson (1873) L.R. 8 Q.B. 118.
See Royal Parks and Gardens Act 1872; Williams, op. cit., ch. 3.
14. See De Morgan v. Metropolitan Board of Works (1880) 5 Q.B.D. 155. See also
Llandudno XJ.D.C. v. Woods [1899] 2 Ch. 705 (religious services on the foreshore).
15. See generally Kruse v. Johnson [1898] 2 Q.B. 91 ; pp. 350-51.
16. Papworth v. Coventry [1967] 1 W.L.R. 663 at 669-670. See also p. 312.

486 Civil Rights and Freedoms

power 17 to give directions for the prevention of obstruction by assemb!*
in that vicinityand in various other places in the police district. Not
every
direction given with those purposes in view for the dispersal of a
pubih
assembly is necessarily valid, but the power is a wide one 18 .

Stationary gatherings on highways are generally regarded as

trespasses
at common law against the person or body in whom the highway is
vested
owner has been obtained.
unless the consent of the This is because the
primary purpose to which a highway is dedicated is passage and re-
19
passage . And
since a public prosecution involves people marching
doun
a highway, participation is pri/na facie lawful except perhaps while the
procession is assembling. But a procession may well constitute an unlawful
obstruction of the highway or a public nuisance.
The general rule that meetings on highways are trespasses is derived
from private law. It gives no weight to the public interest in freedom of
expression, and it seems ripe for reconsideration by the courts. In any
event, the principle of dedication to passage and repassage is subject to
exceptions indeterminate in scope - ancillary activities such as holding
private conversations and shopping are not trespasses, nor are brief stop-
20
pages by motor cars but what of distributing leaflets or soliciting answers
,
21
from passers-by to questionnaires ? - and it would be sensible to replace
the prevailing concept by one which equates trespass with unreasonable
user 22 Seldom would a large meeting in a public thoroughfare be a reason-
.

able use.
Of more practical importance than the law of trespass are the miscellany
of local statutory restrictions already referred to and the law of obstruction.
Wilfully to obstruct the free passage along a highway without lawful

17. Metropolitan Police Act 1839, s. 52. It is an offence to contravene a valid

direction (s. 54(9)).

18. See Papworth v. Coventry (above). See also Town Police Clauses Act 1847, s. 21.

The assembly in question in Papworth' s case comprised only seven stationary protesters
against the Vietnam War. Although they were standing at the corner of Downing
Street, it is doubtful whether they were reasonably capable of causing obstruction or

annoyance.
19. See, for example. Ex p. Lewis (1888) 21 Q.B.D. at 197; Harrison v. Duke of
Rutland [ 1893] 1 Q.B. 142; Hickman v. Maisey [1900] 1 Q.B. 752. See also cases cited
in note 14, and the Scottish cases M'Ara v. Edinburgh Magistrates 1913 S.C. 1059,
and Aldred v. Miller 1924 S.C. (J.) 117. See, however. Burden v. Rigler [1911] 1 K.B.
337 where it was held that a meeting held on a highway was not necessarily unlawful.
20. See Iveagh v. Martin [1961] 1 Q.B. 232 at 273 Randall v. Tarrant [1955] 1
;
W.L.R.

255. For picketing as obstruction, see Hunt v. Broome [1974] A.C. 587. And see
Trade

Union and Labour Relations Act 1974, s. 15.

21. Brownlie, op. cit., pp. 140-41.

22. See the dissenting judgment of Lord Denning in Hubbard v. Pitt [1976] 1
Q.B.

142 for a passionate defence of constitutional freedom, and Wallington, Injunctions

and the ‘ Right to Demonstrate (1976) 35 Camb. L.J. 82.
’

Freedom of Assembly and Association 487

 authority or excuse is a criminal offence, for which
the police may arrest
without warrant. 23 If there has been an appreciable
and unreasonable
obstruction, it is no defence that a way round it
could be found or that
nobody was proved to have been obstructed, 23 nor is it a
defence that
a speaker holding a meeting did not wish to create an obstruction
or that
other speakers holding meetings in the same place had
not been prose-
25
cuted. The prosecution must prove its case, but since the
amount and
duration of an obstruction that it needs to establish in
order to obtain
a conviction are slight, the police and the local authority
have almost
a de facto licensing power with regard to public meetings and
even the
distribution of leaflets in the streets. If they decide to take
no action, their
abstention from prosecution means that no proceedings are
likely 'to be
taken at all. As a matter of prudence, therefore, a prior assurance should
be obtained. If a police officer orders a speaker, distributor, vendor
or
audience to ‘move along’, non-compliance with this direction is likely
to
lead to a conviction for obstruction of the highway or
obstruction of
a constable in the execution of his duty.
Here one sees a close connection between prior restraint and the prospect
of prosecution. Other legal provisions, directed more closely to the
prevention of disorder, can now be noted.
First, public processions are subject to statutory
powers of regulation.
Under Order Act 193 6 26 a chief officer of police
section 3 of the Public
may, where he has reasonable grounds for apprehending that a public
procession may give rise to serious public disorder, impose conditions for
the preservation of public order, including the route to be followed. 27 If
he is of the opinion that these powers are insufficient, he may apply to the
appropriate local council for an order prohibiting all public processions,
or any class of public procession (for example, political processions), for
a period of up to three months, and the council may make such an order
with the consent of the Home Secretary. In the metropolitan police district
the prohibitory order may be made by the Commissioner of Police himself
with the consent of the Home Secretary. Several such orders have in fact
been made over the years, temporarily banning political processions in

23. Highways Act 1959, s. 121; see also Town Police Clauses Act 1347, s. 28;
Metropolitan Police Act 1839, s. 54.
24. See generally Horner v. Cadman (1886) 55 L.J.M. C. 110; Nagy v. Weston
[1965] 1 W.L.R. 280.
25. Arrowsmith v. Jenkins [1963] 2 Q.B. 561. Or that the local authority had ac-

quiesced in the defendant’s obstruction of the highway for a long period before deciding
to prosecute: Redbridge L.B.C. v. Jaques [1970] 1 W.L.R. 1604.
26. Williams, op, cit., pp. 56-63.

27. In the metropolitan area the Commissioner of Police has wider powers under
section 52 of the Metropolitan Police Act 1839.

488 Civil Rights and Freedoms

London. Although the validity of conditions imposed on the organizers of
a procession might be challenged in a court on various grounds, it would
seem that a prohibitory order could be impugned only if it were perverse
or singled out an individual procession. Knowingly to contravene a valid
condition or a ban is an offence 28 .

Secondly, preventive justice may be (and quite frequently is) invoked by

the police in bringing potentially disorderly' demonstrators or other
‘agitators’ before local magistrates, who may bind them over to be of good
behaviour or to keep the peace 29 If they refuse to enter into a recognizance
.

or are unable to find sureties, they may be sent to prison for up to six
months. If they break the conditions set out in the recognizance they
become liable to forfeiture of the sum there specified.
Thirdly, if the police reasonably apprehend that the holding of a gather-
ing in a public place will give rise to a breach of the peace, they are under
a common-law duty to take reasonable steps to prevent that gathering from
taking place or to break it up. The leading authority for this proposition
is the controversial case of Duncan v. Jones 30 its ambit will be considered
;
31
below .

Fourthly, if a public meeting is held on private premises, and the police

reasonably apprehend that, should they not be present, a breach of the
peace or an incitement to violence will occur, they are entitled to attend
and insist on remaining in order to prevent such an occurrence. This is the
narrowest possible ratio decidendi of Thomas v. Sawkins 32 a decision that
has been widely criticized, not least because the judgments included some
unacceptably sweeping propositions about the extent of police powers 33 .

28. See Flockhart v. Robinson [19501 2 K.B. 498.

29. Williams, op. cit., ch. 4; pp. 460-61.
30. [1936] 1 K.B. 218.
31. pp. 494-6.
32. [1935J 2 K.B. 249.
33. See, A. L. Goodhart (1936) 6 Camb. L.J. 22.
for example, A
meeting was
organized by the Communist Party to protest against the Incitement to Disaffection
Bill, then before Parliament, and to demand the dismissal of the Chief Constable

of Glamorgan. Uniformed police entered the meeting and refused to leave; the speaker
laid hands on a police officer whom he wished to eject as a trespasser; the officer
resisted; the speaker took out a summons against the police officer for assault; the
magistrates dismissed the case, holding that the police officer was not a trespasser.
The speaker appealed on a point of law by way of case stated to the Divisional Court.
Some passages in Lord Hewart C.J.’s judgment were too loosely expressed. Avory J.
held that the police were entitled to remainif they reasonably apprehended that if they

were not present seditious speeches and/or breaches of the peace would occur. He
observed (at 256): ‘In principle I think there is no distinction between the duty of
a policc.conslablc to prevent a breach of the peace and the power of a magistrate to
bind a person over to prevent a bicach of the peace.*

Freedom of Assembly and Association 489

 Nevertheless, the principle set out above is reasonable, provided that it is

confined to apprehended violence and the dissemination of incitements.

The presence of a policeman on the spot can have a restraining influence
at both indoor and outdoor meetings. An ordinary member of the public
cannot claim a right to enter a meeting or to remain there after his invita-
tion or licence to remain has been withdrawn, even though the meeting has
been advertised as- being open to the public 34 But the police have special
.

common-law responsibilities for the maintenance of public order, and it

would be unreasonable to deny them a right of entry until a breach of the
peace has actually occurred. It may be asked whether the same rule applies
to private gatherings on private premises. One has to balance the public
interest in the prevention of disorder against (i) the public interest in the
maintenance of personal privacy against unsolicited intrusion, (ii) the pos-
sibility that a power to insist on entry might be abused, and (iii) the prob-

ability that, where incitements to violence are apprehended, the presence

of police officers might not serve any useful purpose because the group
could quietly arrange another meeting at a different time and place. The
pointis not clearly covered by English authority, but it is thought that the

powers of the police do extend to insistence on being present at such a

meeting 35 where violence at or immediately after the gathering is reason-
ably apprehended.

Offences and police powers

We have seen how the mere holding of a public meeting or procession may
be wrongful. It may be a trespass. It will be a criminal offence if it is held
without the permission required by a local Act or by-law, or in breach of
regulations made or directions given by the Commissioner of Metropolitan
36
Police . Organizers of a procession commit an offence if a ban on public

In the text above ‘sedition’ has been equated with an incitement to violence fsee
p. 470). should be noted that the magistrates found as a fact that the police had
It

reasonable grounds for thinking that if they were not present there would be incite-
ments to violence and breaches of the peace.
34. Subject to limited exceptions. Whether a person who has paid for admission to a
public meeting can be ejected as a trespasser whenever the promoters think fit is
questionable. A member of an organization may also have a legal right to attend a
private meeting of that organization.
35. For example, a meeting of a student body on university premises. However,
the possibility that the presence of policemay provoke rather than dampen inflam-
matory statements is not to be disregarded.
36. See especially Metropolitan Police Act 1839, s. 52 (p. 500). Large public
assemblies in the area of Westminster while Parliament and the courts are sitting may
also be unlawful under obsolescent statutes: see Seditious Meetings Act 1817, s. 23;
Tumultuous Petitioning Act 1661, s. 1.

490 Civil Rights and Freedoms

 processions in that area is in force, or if they infringe conditions
lawfully
imposed by the police. A meeting held in a public place may well
constitute
an obstruction of the highway. So may a public procession if it
causes
significant obstruction.
A demonstration, mobile or stationary, may also be a public nuisance
if it entails an unreasonable user of the highway, causing obstruction
or
excessive noise. Prosecutions for public nuisance in this context have
been
uncommon, 37 but in 1963 the leader of a political demonstration in Central
London was sentenced to eighteen months’ imprisonment for inciting
other persons to commit a nuisance. The conviction was quashed on
appeal
because the jury had not been directed to consider whether the obstruction
caused was an unreasonable user of the highway. 38 In that case there was
evidence of obstruction by a large crowd. The decision of the appellate
court may
indicate a benign attitude towards processions (as distinct from
meetings) or a difference in the degrees of obstruction needed to obtain
convictions for public nuisance and for wilful obstruction under the
Highways Act 1959. 39 In any event, the most remarkable feature of the
case was the sentence imposed by the court of first instance.
It is an offence to enter premises by force, whether or not there is an
intention to remain in occupation. 40 Squatters or other persons who occupy
premises peaceably and then barricade themselves in so as to prevent
evictioncommit the offence of forcible detainer; 41 they may also be
convicted of conspiracy to trespass. 42
Participants in a gathering of three or more persons will be guilty of
the common-law misdemeanour of unlawful assembly if their common
purpose is either to commit a crime of violence or to achieve any other
object, lawful or unlawful, in such a manner as to give reasonably courage-
ous persons in the vicinity reasonable grounds for apprehending a breach
of the peace. The unlawful assembly will normally be in a public place,
though it may be on private premises. 43 It may be but is not necessarily
a procession, meeting or demonstration. Prosecutions for this oPenw? have

37. The Attorney-General, on behalf of the general public, may also sue for an
injunction to restrain the continuance or repetition of a public nuisance; see p. 592.
38. R. v. Clark (No. 2) [1964] 2 Q.B. 315.
39. On the question of unreasonable obstruction, the case-law does not point
unambiguously to any such difference.
40. R. v. Brittain [1972] 1 Q.B. 357; Forcible Entry Act 1381.
41. R. v. Robinson [1971] 1 Q.B. 156; R v. Mountford [1972] 1 Q.B. 128; Forcible
t

Entry Act 1429; see articles in [1971] Crim. L. Rev 313, 337, 342; (1971) 35 Conveyancer
.

243.
42. R. v. Kamara [1974] A.C. 104.
43. R. v. Kamara (demonstration in premises of Sierra Leone High Commission in

London).

Freedom of Assembly and Association 491

 been fairly uncommon, but they have recently been brought
against unruly
student demonstrators, 44 and we need to consider the
ingredients of the
crime more closely because they raise difficult questions of
constitutional
importance. It appears that a participant in the gathering
cannot properly
be convicted unless he is proved to have been animated by the common
purpose.
If members of the gathering publicly insult opponents who are likely
to be provoked into committing a breach of the peace, they can properly
be convicted of unlawful assembly, but will probably be prosecuted
for the more mundane offence of ‘ insulting words and behaviour’. 45
Pastor
Wise, the Protestant zealot who specialized in offensive attacks
on
the
Roman Catholic religion, 46 was held to have been properly bound
over to
keep the peace. after his mass meetings in Liverpool had evoked riots
'
among the audience ( Wise v. Dunning ); 47 and there can be no doubt that,
ifcharged with unlawful assembly, he, together with his active supporters
at the meetings,could have been convicted of that offence. What if those
conducting a lawful meeting or procession do not offer insults or threats
but encounter, or know that they are likely to encounter, violent opposition
and still go ahead? The general principle is that a lawful act
does not be-
come unlawful merely because other persons decide to offer unlawful
resistance to it.Indeed, the police ought to protect the meeting first in the
field, and it is an offence to act in a disorderly manner for the purpose of
preventing the transaction of the business of a lawful public meeting. 48 On
the other hand, a common-law duty is cast upon magistrates and other
persons to take such measures as are reasonably required to prevent
breaches of the peace. The constable who plucked an orange lily from the
attire of a Protestant lady who had insisted on displaying it while walking
through a Catholic quarter in Ireland (causing a hostile crowd to gather)
was therefore held not liable in an action for assault; 49 and on the same
grounds a magistrate who attempted to disperse a meeting to be addressed

44. R. v. Caird (1970) 54 Cr. App. R. 499 (the Garden House affair at Cambridge).
45. Under section 5 of the Public Order Act 1936, as restated by section 7 of the
Race Relations Act 1965; see pp. 476-8.
46. For his career, sec Williams, op. cit., pp. 105-10.
47. [1902J K.B. 167. The proceedings were brought under a local Act couched in
1

the same languageas section 5 of the Public Order Act 1936.

48. Public Meeting Act 1908, s. 1. This is not an arrestable offence. Under section 6
of the Public Order Act 1936 a constable may at the chairman’s request, take the
,

name and address of a person whom he reasonably suspects of an offence under the
1908 Act, and arrest him if he refuses or is reasonably suspected of giving a false name
and address.
49. Humphries v. Connor (1864) 17 Ir. C.L.R. 1; Wilson, Cases and Materials, p.
385.

492 Civil Rights and Freedoms

 by Parnell, which was likely to be forcibly broken up by Orangemen, was
held not to have committed any assault. 50
Yet according to the celebrated decision in Beatty v. Gillbanks (1882) 51
Parnell’s meeting would not have been an unlawful assembly. In the streets
of Weston-super-Mare the Salvation Army held musical processions. They
were regularly set upon by an organized gang of hooligans, members of
a body called the Skeleton Army. The collisions of the two armies led to
stone-throwing, free fights and mass uproar, to the terror of the peaceful
inhabitants of Weston-super-Mare. Accordingly the local magistrates pur-
ported to forbid further processions of the Salvationists. 52 The Salvationists
nevertheless formed up for Sunday. A police
their procession the following
officer called upon he refused and was arrested.
their leader to desist;
Several Salvationists were brought to court on a complaint alleging that
they had been guilty of unlawfully assembling; the magistrates found the
case proved and ordered them to find sureties to keep the peace. The de-
fendants appealed successfully against this order to the Divisional Court. 53
The court emphasized that the disturbances of the peace had not been the
natural consequence of the Salvationists’ conduct but had been caused by
their opponents.
Some fifty years later Mrs Duncan, a Communist, put down a box in
the street outside a training centre for the unemployed in South-East
London and was about to climb on it to deliver a speech when the chief
constable told her to desist, saying that she could hold her meeting round
the corner 175 yards away. Not wishing to lose her audience, she insisted
on beginning her speech, whereupon she was arrested and charged with
the offence of wilfully obstructing a constable in the execution of his duty. 54
She was convicted and fined £2. Her appeal was dismissed by quarter
sessions, and she appealed to the Divisional Court by case stated. She had
held a meeting at the same spot a year before, and a disturbance, attributed
to what had taken place at the meeting, had occurred in the centre after-

50. O' Kelly v. Harvey (1883) 15 Cox C.C. 435. In both of these cases the ‘assault*
was technical.
51. 9 Q.B.D. 308. In somewhat similar cases decided in the same year in Scotland
and Bombay, the conduct of Salvationist marchers was held to be unlawful: Deakin
v. Milne (1882) 10 R (J.) 22; Empress v. Tucker (1882) Ind. L.R. 7 Bombay 43; Thomas
M. Franck, Comparative Constitutional Process pp. 477-82. See Williams, op. cit.,
y

pp. 50-51, 103, on the general background.

52. Their proclamation imposing the ban was destitute of legal elfect (note 11).
53. Note that the Salvationist leaders were never convicted of the crime of unlawful
assembly; a magistrates’ court has no jurisdiction to convict for that offence. However,
thisis not an important point, for the judgments in the Divisional Court were con-

cerned with the question whether the offence of unlawful assembly had been committed .

54. Under s. 12 of the Prevention of Crimes Act 1871, as amended by s. 2 of the

Prevention of Crimes Act 1885; now replaced by s. 51 of the Police Act 1964.

Freedom of Assembly and Association 493

 wards. The deputy chairman of quarter sessions found that: (i) Mrs
Duncan must have known of the probable consequences of her holding
the meeting at that spot and was ‘not unwilling’ that they should occur;
(ii)the respondent police officer reasonably apprehended a breach of the
peace; (iii) it his duty to prevent the holding of the
thereupon became
meeting; and by attempting to hold the meeting she obstructed him
(iv)
55
in the execution of his duty. The Divisional Court dismissed the appeal.
Beattyv. Gillbanks, described by Lord Hewart as ‘a somewhat unsatis-
factory case’, 56 was distinguished on the ground that it was a case of
unlawful assembly, which was not in issue in the case in hand. Moreover,
in Duncan v. Jones there was a causal connection between the previous
meeting and the subsequent disturbance which took place because of that
meeting.
Attempts to reconcile Beatty v. Gillbanks with Duncan v. Jones are not
abstract intellectual exercises; they go to the root of a vital issue of public
policy.What weight should be given to two competing values: freedom
of assembly and the maintenance of public order ?

1. The most popular answer, which sidesteps the main issue, is that if the
Beatty v. Gillbanks situation were to be repeated today the Salvationist
leaders could and should be convicted not of unlawful assembly but of the
lesser offence of obstructing a constable in the execution of his duty (see
57
now Police Act 1964, s. 51 (3)). This still gives primacy to the public
interest in preventing reasonably apprehended breaches of the peace but
reconciles the two decisions.

2. Another possible answer is that the material facts in the two cases were
different, in that Mrs Duncan’s conduct, unlike that of the Salvationist
leaders, had been provocative and the effective cause of the reasonably
apprehended breach of the peace. 58 Again the two cases are reconciled, but
the argument is that it was not the duty of the police to prevent the Sal-
vationists from conducting their procession. A difficulty with this argument
59
is that the concept of ‘causation’ is ambiguous. There would have been
no disturbance in Weston-super-Mare if the Salvationists had agreed to
desist; in this sense the Salvationists, as well as the Skeleton Army,
‘caused’ the breaches of the peace. In another sense, the Skeleton Army
‘caused’ the disturbances because of their violent and unreasonable oppo-
sition to a peaceful procession; they were blameworthy and therefore

55. [1936] 1 K.B.218.

56. At 222.
57. See generally pp. 448-50.
58. For example D. L. Keir and F. H. Lawson, Cases in Constitutional Law (5th
edn), pp. 194-5.
59. See H. L. A. Hart and A. M. Honore, Causation in the Law , pp. 333-5.

494 Civil Rights and Freedoms

 responsible. The latter analysis seems mote persuasive. On the other
hand
if there is a subjective element in causation, one cannot ignore
the fact*
that the Salvationists (like Mrs Duncan) knew the probable consequences
of their conduct and were nevertheless prepared to invite trouble, 60
parti
perhaps, because they thought that this would earn them
favourable
publicity.

3. A third line of analysis runs as follows. Beatty v. Gillbanks was rightly

decided. Duncan v. Jones was wrongly decided. Mrs Duncan was not
proved to have committed any independent offence (for example, obstruc-
61
tion of the highway ) or to have intended to incite others to commit
a breach of the peace or any other offence. Disobedience to a policeman’s
command should not have been held to render lawful conduct unlawful. 62
Even assuming that the police do have a duty to prevent all reasonably
apprehended breaches of the peace, howsoever arising, and that they could
therefore properly call upon Mrs Duncan to desist, her refusal merely
provided the policeman with a defence to any proceedings she might have
brought against him for a technical assault. Preventive justice ought not to
be transmuted into punitive justice.

4. Finally, has been argued 63 that the conduct of the Salvationists in

it

Beatty v. Gillbanks had all the ingredients of the common-law mis-

demeanour of unlawful assembly and the case was therefore wrongly
decided. Since the maintenance of public order is a primary value, Duncan
v. Jones was rightly decided on the facts.

So uncertain is the state of the law that none of these alternative analyses
is demons! rftbly wrong. The third may appear to be the most attractive,

though to adopt it would not necessarily make a great deal of difference

60. cf. Jordan v. Burgoyne [1963] 2 Q.B. 744, where it was held that unreasonably
hostile reactions by a speaker’s audience were irrelevant once the speaker had de-
liberately insulted them; the speaker could still be convicted under section 5 of the
Public Order Act 1936, and had to take his audience as he found them. The Salvation-
however, had not used insulting words or behaviour. Sec generally, on the problem
ists,

of a hostile audience, with comparisons with American law, Geoffrey Marshall,

Constitutional Theory ch. 8, and pp. 477-8.
,

61. Or insulting behaviour; cf. Wise v. Dunning (above).

62. cf. Daintith [1966] Public Law 248 at 258-9, and lan Brownlie, The Law Relating
to Public Order pp. 18-22, 40-45.
,

63. See O' Kelly v. Harvey (1883) 15 Cox C.C. 435 (dictum), and note 50; though
cf. R. v. Londonderry JJ. (1891) 28 L.R. Ir. 440, another Salvationist case, where the

members of the court expressed a variety of opinions as to the relevant legal principles.

In the Londonderry case these observations were also obiter no breach of the peace ;

was reasonably apprehended, and an order that the Salvationists give sureties to keep
the peace was thcrcloic quashed.

Freedom of Assembly and Association 495

 04
in practice . The probability is that the courts will tend to follow Duncan v.
Jones even in cases where those who have declined to disperse are less
blameworthy than their opponents but in such cases the police must expect
;

to have to produce strong grounds for apprehending that the peace could
be preserved only by interfering with the freedom of the innocent party.
The courts may indeed hold that obstruction of the police in the execution
of their duty can be committed by persons who persist in trying to conduct
a public meeting on private premises if a breach of the peace is reasonably
apprehended. But the attitude of a court to a particular situation may well
be influenced by the magistrates’ or judges’ impression of the merits of the
contending factions. In particular, the behaviour of a hostile audience may
evoke divergent judicial responses. Recently Lord Reid said, in a different
context, that it would be ‘going much too far to prohibit all speech or
conduct likely to occasion a breach of the peace because determined
opponents may not shrink from organizing or at least threatening a breach
of the peace in order to silence a speaker whose views they detest ’. 65
In any event, the citizen cannot be sure of his rights, and the policeman
is also in an invidious position.
Whether he protects an unpopular speaker
against the crowd (for example, by arresting abusive interrupters and
charging them with insulting or threatening words or behaviour likely to
cause a breach of the peace), or tries to disperse a gathering in order to
preserve the peace, he can expect to be criticized for taking sides or stifling
freedofn of expression. If he intervenes too precipitately, he may be sued
or prosecuted for assault and will incur the displeasure of his superiors 66 .

When an unlawful assembly is proceeding to the execution of its pur-

pose, it constitutes a rout. If it goes on to execute that purpose in a violent
manner which alarms a person of reasonable courage in the neighbour-
hood, it constitutes a riot. A riotous assembly may also arise spontaneously.
Itmust be proved, in order to obtain a conviction for riot, that the rioters
1

intended to aid one another by force if necessary to overcome any opposi-

tion to the execution of their unlawful private purpose 67 Several of the .

64. //the police have a legal duty to restrain a speaker physically in the Duncan v.
Jones type of situation so that (assuming that they have used no more force than is
reasonably necessary) they have a defence to an action or prosecution for assault,
any physical resistance on the speaker’s part will then presumably constitute the offence
of assaulting or obstructing a constable in the execution of his duty.
65. Cozens v. Brutus [1973] A.C. 854 at 862 (a case on ‘insulting behaviour’: see p.
477).
66. There are other problems. For instance, do the police have a duty to go to the
assistance of an occupier wishing to evict trespassers who are also conspirators?
67. See generally Field v. Metropolitan Police Receiver [1921] 3 K.B. 334; Munday
v. Metropolitan Police District Receiver [1949] 1 All E.R. 337; Brownlie, op. cit.,

pp. 47-54.

496 Civil Rights and Freedoms

modern reported cases on riot are concerned with civil claims to com-
pensation out of police funds, under the Riot (Damages) Act 1886, for
loss suffered by property-owners as a result of what they claim to have been
riots.
Akin to riot is the common-law offence of causing an affray by fighting
68
or threats of force giving rise to alarm in the neighbourhood. Convictions
for affray are apt to be more easily obtained than for riotous assembly, for
an affray may be committed without any common purpose on the part of
the assailants, or proof indeed that anyone was in fact alarmed if the
offence occurred in a public place; and it appears that a single aggressor
may be convicted of affray. 69
Citizens are empowered, and probably obliged, to use their best en-
deavours for the suppression of riots, 70 and may use such force as is
reasonable in the circumstances for the purpose. 71
The main burden of
responsibility rests upon local who must
magistrates and the police,
72
neither overreach themselves nor fail to act when the occasion arises. The
magistrate’s task has become somewhat less onerous since the repeal in
1967 73 of the Riot Act 1714, under which he was required to read to the
rioters a proclamation, calling upon them in the Queen’s name to disperse
peaceably. 74 Troops may be called in to disperse rioters in the last resort;
they should normally act only under the direction of the competent civil
authorities, and the degree of force they use must be proportionate to the
evil to be averted. 75
Finally, there are three points of some importance in the conduct of
public meetings but not directly associated with the foregoing discussion.

68. See Button v. D.P.P. [1966] A.C. 591 (affray may be committed on private
The
premises). revivaland extensive use of prosecutions for this ancient common-law
misdemeanour in recent years may be compared with the revival of prosecutions for
forcible entry and detainer (see pp. 490-92).
69. Tavlor v. D.P.P. [1973] A.C. 964.
70. Charge to the Bristol Grand Jury (1832) 5 C. & P. 262n. Certainly they are under
a common-law duty to go to the aid ol a constable when called upon to assist: R . v
Brown (1841) Car. & M. 314.
71. See generally Criminal Law Act 1967, s. 3. For various problems connected with
excessive force, excessive resistance and the duties of the citizen, see Devlin v.
Armstrong [1971] N.I. 13.
72. R. v. Pinney (1832) 3 B.& Ad. 947 (culpable failure to act where need arises is
a common-law misdemeanour).
73. Criminal Law Act 1967, s. 10(2), Sclied. 3, Part III.
74. This was popularly called ‘reading the Riot Act’, though the rest of the Act
was not read.
75. Sec review of the authorities in Lynch v. Fitzgerald [1938] I.R. 382; Keir and
Lawson,- Cases (5th edn), p. 212. For a colourful account of the background to this
case, see R. F. V. Heuston, Essays in Constitutional Law (2nd edn), pp. 147-9. See
further, pp. 499-500 below.

Freedom of Assembly and Association 497

1. Section 2(6) of the Public Order Act 1936 recognized the legality of

employing a reasonable number of stewards to assist in the maintenance

of order in public meetings on private premises. However, they are not to
be so organized as to usurp the functions of the police or to display force
in the promotion of a political object.

2. It is an offence under section 1 of the Act to wear a political uniform

(except with the permission of the Home Secretary) in a public place or
at a public meeting. Emblems, badges and armbands will not normally be
understood to be uniforms, but a shirt with a colour signifying the
wearer’s political associations would be so regarded. Those who, in 1974,
attended a London IRA funeral procession in black berets and dark
glasses were convicted under the section. 76

3. Under the Prevention of Crime Act 1953 it is an arrestable offence to

have, without lawful authority or reasonable excuse, an offensive weapon
in a public place. For this purpose, a public place includes a public meeting
on private premises. The burden of proving lawful authority or reasonable
excuse will lie on the defendant. An offensive weapon is an article made or
adapted for causing injury to the person, or alternatively one that is* in-
tended by the person having it with him to be used for that purpose; in
the latter case the prosecution must prove intent. The 1953 Act overlaps
with and largely supersedes section 4 of the Public Order Act 1936, which
made it an offence to have an offensive weapon without lawful authority at a
public meeting or procession the 1953 Act also imposes heavier penalties. 77
;

The range of crimes and civil wrongs that may be committed by par-
ticipants in public gatherings is therefore impressive. And the miscellany
of crimes and torts described m the previous chapter may be committed
on such occasions. The ample scope of punitive, preventive and repressive
powers (which, as is to be expected, is far wider in Northern Ireland 78 )
implies that considerable self-restraint must be shown by the police and
magistrates if the spokesmen of unpopular or eccentric causes are to be
allowed to ventilate their opinions. After a serious clash in Red Lion
Square, London, in 1974 between left and right wing extremists Lord Jus-
ticeScarman conducted a public inquiry and in a comprehensive report
pronounced himself largely satisfied with the present law. 79
76. O'Moran v. D.P.P. [19751 Q.B. 864. The Prevention of Terrorism (Temporary
Provisions) ActJ976, s. 2 now makes it a specific offence for members of the or IRA
other proscribed organizations to wear any item of dress or wear, carry or display
any article in public support of that organization.
77. See Brownlie, op. cit., pp. 61-73.

78. See Claire Palley, The Evolution, Disintegration and Possible Reconstruction of the
Northern Ireland Constitution, pp. 400-404, 412-16, 434-40; Lord MacDermott, ‘Law
and order in time of emergency’ (1972) 17 Juridical Review (N.S.) 1 and ch. 30.
79. The Red Lion Square Disorders of 15 June 1974. Cmnd. 5919 (1975).

498 Civil Rights and Freedoms

Chapter 23
National Emergencies

Civil disorder

Towards the end of the last chapter we referred to the role of troops in
suppressing riots The relevant section of the official Manual oj Military
.
1

Law 1 is headed ‘Employment of Troops in Aid of the Civil Power’. If

local rioting occurs, the civil power will be the mayor, magistrates and
police; though unless the emergency arises very suddenly, it can be taken
for granted that any decision to call in troops will be taken with the
authority of the Prime Minister, the Secretary of State for Defence and
the Home Secretary, and some measure of political
that there will be
direction as to the circumstances in which they are to use force 3 Never- .

theless, the military officer on the spot may have to make a snap decision
whether to use force, and if so, how much, to quell a riot. It may be
sufficient to use batons, tear gas, rubber bullets or water cannon. If such
methods are ineffective in the circumstances, he must decide whether to
order his men to open
with lethal bullets. Failure to give such an order
fire

may lead to the triumph of the rioters

and perhaps the capture of arms,
followed perhaps by his being court-martial led and cashiered , 4 or even
indicted forcommon-law misdemeanour 5 in respect of his breach of duty.
,

Ifhe orders deadly violence to be used when this is not justified under the
conditions, he (and possibly his subordinates ) 6 may be convicted of murder
or manslaughter.

1. p. 497.
Relevant extracts are set out in Appendix I to Brownlie’s Law Relating to Public
2.
Order the references to ‘felony’ and the Riot Act 1714 are now obsolete.
;

3. See, for example, Randolph Churchill, Winston S. Churchill vol. 2, pp. 367-86,
,

on how decisions were made about the use of troops in the wave of strikes in 1910-11.
The General Officer Commanding British troops in Northern Ireland has been subject
to the political direction of the United Kingdom Government.
4. See Professor Houston’s account of the sequel to the Bristol Riots of 1831 in

Essays in Constitutional Law (2nd edn), pp. 137-8. For a fuller account of the use of
troops in aid of the civil power at that time and in the preceding years, see L, Rad-
zinowicz
l
A History of English Criminal Law and its Administration , vol. 4, pp. 141-52.
5. cf. R. v. Pmncy (p. 510, note 72, above).
6. Subject to the doubtful defence of superior orders; see pp. 201-2.

National Emergencies 499

 The officer’s predicament is made more acute by the obscurity of the
legal principles governing the scope of his duties. Judges and writers have
insisted many times over that soldiers are entitled, indeed obliged at com-
mon law, to use all necessary force, including deadly violence in the last
resort, to disperse rioters who are doing serious and extensive damage to
property - for example, demolishing and setting fire to colliery buildings. 7
Is this still the law? Section 3 of the Criminal Law Act 1967 provides that
a person may use such force as is reasonable in the circumstances in the
prevention of crime; and it expressly replaces the common-law rules on
this matter. Referring to this section, 8 the authors of a leading textbook
on criminal law assert that it can rarely, if ever, be justifiable to use deadly
9
What if skinheads try to burn
force merely for the protection of property.
down the National Gallery, or if revolutionaries try to demolish No. 10
Downing Street as the symbol of an immoral society ? In the last analysis,
answers to the question whether it can be justifiable to use lethal weapons to
prevent the destruction of property, in the absence of an immediate threat
to human life, may depend on value judgements which may reasonably
differ. Soldiers can be expected toTSe equipped with commoji sense. They

can hardly be expected to make fundamental judgements about social

institutions when they are under stress in the face of mob violence; and
their oath of loyalty implies an obligation to do what appears necessary for
10
the preservation of the existing order and its physical manifestations.
It is possible to analyse the duties of soldiers to quell local riots as being

the duties of the ordinary citizen writ large. But when riot passes into
rebellion or guerrilla warfare, emphases shift and other principles intrude.
Levying ‘war* against the Queen in her realm is both treason and treason

feloily. The power primarily responsible for containing and sup-

civil

pressing an uprising must be the Government in office. The military

authorities will be obliged to act in its support. The Crown, acting through
its advisers, has, moreover, a prerogative power to direct the
disposition

7. See, for example, Report of the Committee on the Featherstone Riots (C. 7734
0893)).
8. For an interpretation of the corresponding provision in
Northern Iceland law see
Miss
Devlin v. Armstrong [1971] N.I. 13 (organization of petrol-bomb throwing by
Devlin not reasonable to prevent invasion of Bogside by constabulary and
suspected

Protestant mob).
9. J. C. Smith and Brian Hogan, Criminal Law (3rd
edn), p. 262.

10. However, the potentially grave social consequences

of resorting to deadly
physical assauh by
violence, even in a situation where troops are being subjected to
riotous demonstrators, were vividly illustrated by the events of
‘Bloody Sunday in
1972). See the Report of the Widgery Tribunal of
Inquiry
Londonderry (30 January
to the
(H.C. 220 (1971-72)), where it seems to have been assumed that instructions
troops to fire without warning only against persons endangering or
about to endanger
life (see paras. 89 et seq.) were correct in law.

600 Civil Rights and Freedoms

 and use of the armed forces. The exact limits of this prerogative are far
from clear 11 but it cannot mean that troops can lawfully be ordered to do
;

whatever the Crown thinks fit whenever it thinks fit to maintain internal
security, irrespective of what necessity requires. However, it may well imply
that the strict tests of legality applied to the conduct of those entrusted
with the preservation of order in local disturbances 12 should be slightly
relaxed in time of extensive turmoil.
If the situation moves a stage farther and the civil authorities become
incapable of governing because of a large-scale insurrection, powers to do
whatever may be needed to restore peace may be handed over to (or
assumed by) the military authorities. This is a new situation, different both
in degree and kind. A state of martial law will then exist, and the powers
of the General Officer Commanding the Forces will, so it is usually thought,
become non-justiciable and, for the time being, absolute, subject only to
consultation (if this is feasible) with the civil power.
Martial law has been aptly described as ‘a peculiar system of legal
relations 13
’
which arises in time of civil war or insurrection, or, it may be
added, invasion. It is a state of affairs, not a settled body of rules, though
rules and orders be promulgated and enforced by the military authori-
will
ties as they see must be sharply distinguished from military law,
fit. It
a settled body of rules applied in accordance with prescribed procedures
to members of the armed forces and ancillary personnel. Military law is
simply a specialized branch of United Kingdom law administered by
military officers acting summarily or sitting in courts-martial, subject to
the supervisory and appellate jurisdiction of the ordinary courts 14 Courts- .

martial applying military law are regular courts. Courts-martial applying

martial law are not: they are informal tribunals or committees of officers 15 ,

and appear to be no more subject to the supervisory jurisdiction of the

superior courts than are ‘drumhead courts’ or soldiers meting out sum-
mary punishment to armed rebels, curfew-breakers or other supposed
malefactors among the civil population.
Confusion of martial law with military law was far more common before
11. The common-law rules on the prerogative in emergencies falling short of war
1
are remarkably abstruse; see the inconclusive comments in Halsbury s Laws of England
(4th edn), vol. 8, pp. 625-6.
12. See Lynch v. Fitzgerald [1938] I.R. 382; Keir and Lawson, Cases (5th edn),
p. 212.
13. Keir and Lawson, Cases (5th edn), p. 224; also see generally pp. 224-62 Heuston, ;

Essays (2nd edn), pp. 150-63; symposium in (1902) 18 L.Q.R 117-58. .

14. See pp. 198-201.

15. Hence the courts will not control them by issuing prerogative orders: Re Clifford
and O'Sullivan [1921] 2 A.C. 570 (prohibition). This House of Lords decision skirted
the main issue - whether the courts had any jurisdiction at all to interfere with the
decisions of the military tribunals.

National Emergencies 501

a regular corpus of military law was introduced in the eighteenth century.
In the Middle Ages the prerogative Court of the Constable and Marshal
dispensed the ‘law martial’ against rebellious civilians as well as un-
16
disciplined soldiers; it most of its jurisdiction in 1640. Under the
lost
Tudors and early Stuarts special commissions were issued from time to
time under the prerogative for the trial by martial law of serious offenders
against public order. The issue of such commissions was forbidden by the
Petition of Right 1628. But the terminological confusion lingered on.
The term ‘martial law’ is also sometimes used to denote military rule
over enemy territory occupied by British forces. Such a situation is regu-
lated rather by the international law of war than by British municipal law.
Finally, ‘martial law’ can be used to describe an entirely different kind
of situation - one where military officers overthrow the legitimate govern-
ment, establish a new regime and proclaim a state of martial law. The
phenomenon is all too familiar in many countries. It has not arisen in
Britain inmodern times and our constitutional law books are silent on its
legal consequences. Briefly, one can say that the judges and officials are
not obliged to recognize the validity of such a proclamation, any more than
they are obliged to accept any other revolutionary coup d'etat, but that if
they defy the mailed fist, they cannot expect to retain office for long. If they

do recognize the supersession of the old order as valid, 17 successful

18
revolution has begotten its own legality.
Propositions about martial law situations, as viewed by the courts, are
deducible from cases arising out of the Irish troubles and the Boer War.
They presuppose (i) the existence of civil authorities who (ii) are unable
to cope with widespread disorders or armed conflict and who therefore
(iii) authorize or acquiesce in the imposition of military government upon

civilians for the purpose of restoring order.

1. A state of martial law may be introduced by or without a proclamation.

A proclamation purporting to introduce a state of martial law is of no

legal effect in itself; martial law is justified only by paramount necessity.

16. However, the ancient Court of Chivalry retains a minor aspect of tfie jurisdiction:
see Manchester Corporation v. Manchester Palace of Varieties Ltd [1955] P. 133 (right
to use a coat of arms).
17. As they did in Pakistan in 1958 (The State v. Dosso P.L.D. 1958 S.C. 533);
though the prevailing conditions did not justify the initial proclamation of martial law
in that year: seeAlan Gledhill, Pakistan: The Development of its Laws and Constitution
(2nd edn), 108. Martial law was again declared in Pakistan in 1969 during a wide-
spread breakdown of law and order, but after the collapse of the regime early in 1972
following the defeat of the Pakistan army by India, the Pakistan Supreme Court held
(Jilani v. Government of the Punjab P.L.D. 1972 S.C. 139; disapproving Dosso' s case)
that the martial-law regime was unlawful.
18. See pp. 66-8.

502 Civil Rights and Freedoms

 2. If the ordinary courts are
still sitting, it seems that they have
jurisdicJo-
to determine whether ‘a state of war’ (not necessarily war in the inter-
national sense, but a state of affairs requiring military ‘pacification’
by
the imposition of martial law) exists in an area whjsre they normally
have
jurisdiction. In determining this question, they will give heavy weight
to
the opinion of the local military commander, but his opinion is
not
binding on them. 19
3. If they decide that a ‘state of war’ does exist, then (according
to the
present weight of legal opinion) they should decline to review the legality
of anything done by the military authorities in the purported discharge of
till, in their independent judgment, the
military responsibilities ‘state of
war’ has terminated. 20
4. The non-justiciability of acts done by the military authorities during
the ‘state of war’ seems to embrace situations where they have exceeded
21
emergency powers conferred on them by statute.

5. When ordinary civil proceedings can be resumed, proceedings may

be
brought against the military authorities by persons aggrieved by acts done
during the state of martial law. According to one view, soldiers will be
legally liable at common law in respect of any unnecessary use of force
against persons or property. 22 A more realistic view is that liability should
attach only to such conduct as was manifestly unreasonable in the circum-
stances. 23 In practice an Act of Indemnity is almost certain to be passed
(assuming that the disturbances are quelled), exonerating from liability
persons who were acting in good faith for the suppression of the uprising. 24

States of martial law have existed in British colonial dependencies. The

need for imposing martial law has practically disappeared in relation to
19. See, for example, R. v. Allen [1921] 2 I.R. 241 ; R. (Garde) v. Strickland [1921]
2 I.R. 317; cf. the striking decision in Egan v. Macready (below).
20. Ex Marais [1902] A.C. 109; Tilonko v. Att.-Gen. oj Natal [1907] A.C. 93;
p.
cases cited in note 19 above and note 21 below.
21. R. v. Allen (above); but see Egan v. Macready [1921] I.R. 265, where the court
held that the ‘prerogative’ powers exercised by the military authorities had been super-
seded by statute. See the valuable discussion of these cases in Kcir and Lawson, op. cit.,
pp. 233-7. And note the courageous decision of a Pakistan court in Mir Hasan v. The
State P.L.D. 1969 (2) Lahore 786, interpreting a martial-law regulation and holding
an order made by a martial-law authority to be invalid; see Dias [1970] Camb. L.J. 49.
It is arguable that public policy docs not require a total abdication of judicial review

during a state of martial law.

22. Dicey, op. cit., pp. 289-91.
23. Keir and Lawson, op cit., p. 231.
24. For interpretation of such an Act, sec Wright v. Fitzgerald (1798) 27 St. Tr. 759.
But much will depend on. the wording of the particular Act and a jury’s view oi tne
merits of the case: see O’Higgins (1962) 25 Mod. L. Rev. 413, discussing unreportejd
Irish decisions on the activities of ‘Flogger Fitzgerald’.

National Emergencies 503

f those*25dependencies covered by the Emergency Powers Order in Council
!

1939. This Order, empowering the Governor of a territory to declare

a state of emergency, endows him with almost limitless powers to make
r

;
regulations for the duration of the emergency, 26 and martial law ought to
be superfluous, even if troops have to be used.

. War
, The declaration and general conduct of war, as the term is understood in
; international law, are matters of prerogative. Among the specific pre-
'
rogatives exercisable in time of war are powers to intern and deport enemy
27
aliens, to prohibit trading with the enemy except by licence, to requisition
'

property (including land 28 and British ships 29), for military purposes, to
,

requisition neptral ships and chattels (the right of angary), 30 and to destroy
’

property in order to impede, or deny facilities to, an advancing enemy. 31

Compensation is payable at common law for requisitioning, damaging or
- destroying private property (except in battle); 32 but’ the War Damage Act
1965, abolished the duty’ to pay compensation for lawful* damage to or
destruction of property during, or in contemplation of the outbreak of,
33
•war. The exact scope of the prerogative in time of war may never be
exactly ascertained. Nor is it clear how far the war prerogatives extend to
a state of immediately apprehended war. Again, some of the emergency
powers exercisable by the Crown (for example, to enter upon private
property and construct defence works to repel ah invasion) 34 may be
regarded as common-law powers exercisable by all citizens as a matter of
necessity, and not peculiar to the Crown; hence they would not usually
be classifiable as prerogatives. In practice most of the powers that the
Crown is likely to exercise during war will be regulated by statute.

- 25. Published in S.I. 1952, Vol.1, p. 621. There have been various amending orders.

26. Sir Kenneth Roberts- Wray, Commonwealth and Colonial Law, pp. 642-3.
Similar legislation has been enacted in many former dependencies.
.
/27. R. v. Bo t trill, ex p; Kuechenmeister [1947] K.B. 41. ’

- 28. See discussion of the precedents in Att.-Gen. v. De Keysets Royal Hotel Ltd
[1920] A.C 508: - n* •’-> .. .. 1 '

>r29. The Broadmayne [1916] P. 64.

^ 30. Commercial & Estates Co. of Egypt v. Board of Trade [1925] 1 K.B. 271.
Y*31. Burmah Oil Co. \. Lord Advocate [1965] A.C. 75 (destruction of British-owned
oil installations in Burma in 1942, on orders of military commander, acting in pur-
« suance of Government ‘scorched earth* policy, so as to prevent Japanese army from
taking them intact).
•**'32. ibid: *r •

£‘33. The Act was severely criticized in that it had retroactive effect, overruling the
actual decision of the House of Lords in the Burmah Oil case.
^ .34 ..Case of the King*s Prerogative in Saltpetre (1606) 12 Co. Rep. 12.

604' Civil Rights and Freedoms

 There seems to be no justification for the view that a state of martial
law may be imposed within the realm whenever the Crown is at war; if
the civil authorities are capable of governing, there is no legal warrant for
the introduction of military rule by prerogative.
Reference has already been made to the vast powers conferred on the
Crown in Council by the Defence of the Realm Acts 1914-15 and the
Emergency Powers (Defence) Acts 1939-40. 33 The general words of the
Defence of the Realm Acts, authorizing the making of regulations to secure
the public safety and the defence of the realm, were construed as being
wide enough to validate a regulation for the preventive detention of British
subjects on security grounds. 36 The emergency legislation of the Second
World War was more explicitly worded. It expressly saved the royal pre-
rogative; 37 it authorized the sub-delegation of delegated powers and the
imposition of charges on the subject, 38 and the making of regulations for
the detention of persons on security grounds and for the amendment of
any prior Act of Parliament. 39 The Emergency Powers (Defence) (No. 2).
Act 1940 authorized the making of Defence Regulations for the trial of
civilians by special courts if the military situation so required. No
such
regulation was in fact made. The Acts expired in 1946, but some of the
Defence Regulations were continued in force and others were made under
post-war emergency legislation. Those which had suivived were placed on
a permanent footing by statute in 1964. Regulation 18 B, authorizing the
internment of security suspects, had been revoked immediately after the
termination of armed hostilities with Germany.
It should be noted that in neither world war was the right to apply for
the writ of habeas corpus against the Executive expressly suspended.
However, regulations authorizing a Secretary of State to detain persons
of hostile origins or associations were so broadly interpreted by the courts
as to leave a detainee hardly any room for successfully challenging an
internment order by habeas corpus or any other means. 40

35. p. 326.
36. Halliday ex p. Zadig [1917] A.C. 260 (Regulation 14B).
JR. v. ,

Emergency Powers (Defence) Act 1939, s. 9.

37.
38. ibid., ss. 1(3), 2; cf. Att.-Gen v. Wilts United Dairies Ltd (1921) 37 T.L.R. 884,
.

where it was held that the Food Controller, purporting to act under emergency powers,
could not validly require a milk purchaser to pay him 2d. a gallon as a condition of
being granted a licence to 'purchase, since he had no express statutory authority to
impose a charge. *
-

,
39. ibid. ss. l(2)(a), 1(4).
40. R. v. Halliday (above) ; Liversidge v. Anderson [1942] A.C. 206; Greene v. Home
Secretary [1942] A.C. 284; cf. R. v. Secretary oj State for Home Affairs , ex p Budd
.

[1942] 2 K.B. 14 (release by habeas corpus where detention order defective in form,
followed by valid detention under detention order properly made out). For a hostile
critique of the implementation of a policy of preventive detention of security suspects,

National Emergencies 505

 Disruption of essential services

Permanent legislation gives the Executive power to deal with dislocation

caused by strikes in essential services and by natural catastrophes. Under
the Emergency Powers Acts 1920 and 1964 Her Majesty may proclaim a
state of emergency if at any time it appears to her that there have occurred,
or are about to occur, events of such a nature as to be calculated to deprive
the community, or any substantial part of it, of the essentials of life by
interference with the supply and distribution of food, water, fuel or light,
or with the means of locomotion. If Parliament is not sitting when such
a proclamation is issued, it has to meet within five days. The proclamation
will be in force for one month but may be revoked before the expiry of
that time or renewed after it.

During the of emergency, such regulations may be made by Order

state
in Council as are deemed necessary for securing and regulating the supply
and distribution of the necessities of life, for preserving the peace and for
other essential purposes and incidental matters.
A court would probably hold the grounds for making the proclamation
to be non-justiciable; 41 and the power to make regulations is so widely
drawn that it would be difficult to establish that any such regulation was
ultra vires though it might be less difficult to show acts done ostensibly in
,

pursuance of a regulation were unlawful. Under a number of new Common-

wealth constitutions which give power to the Executive to proclaim a state
of emergency, derogation from certain guarantees of fundamental rights
is permitted but only to the extent ‘reasonably required* or ‘reasonably
justifiable’ for the purposes of dealing with the emergency situation. 42
In a state of emergency, troops may be employed on agricultural duties ; 43
and there is a statutory power (not confined to formal states of emergency)
vested in the Secretary of State to call out the reserve forces, 44 if required,
to assist the civil power in preserving public order. 45
Several safeguards are provided against the serious abuse of statutory
emergency powers. Regulations made under Acts of 1920 and 1964 must
be laid before both Houses of Parliament as soon as may be, and expire

see C. K. Allen, Law and Orders (3rd edn), Appendix 1. Earlier editions were even
more critical.

Ningkan v. Government of Malaysia [1970] A.C. 379.

41. cf.
For reviews and critiques of ‘emergency’ powers in Northern Ireland, see Lord
42.
MacDermott (1972) 17 Juridical Review (N.S.) 1; Claire Palley, The Evolution Dis- ,

integration and Possible Reconstruction of the Northern Ireland Constitution (reprinted

from (1972) 1 Anglo-American L. Rev. 368-476); Fabian Soc., Emergency Powers: A
Fresh Start (1972). See also pp. 631-4.
43. Emergency Powers Act 1964, s. 2.
now Reserve Forces Act 1966.
44. See
45. Army Reserve Act 1950, s. 10(1).

506 Civil Rights and Freedoms

seven days after being laid unless approved by affirmative resolutions
of
both Houses. They may create new criminal offences triable by magistrates’
courts, but the maximum penalty is to be three months’ imprisonment
and
a £100 fine and they cannot change existing criminal procedure or authorize
punishment by imprisonment or the imposition of fines without trial. 46
Nor may any such regulation make it an offence to take part in a strike
or peacefully to persuade others to take part in a strike or impose com-
pulsory military service or industrial conscription.
States of emergency were proclaimed in 1921, 1924, and again in 1926
at the time of the General Strike followed by a miners’ strike. From 1945
to the end of 1976 they were proclaimed on eight occasions, five of them
under the Heath Government (arising from a dock strike and ‘work to
power stations in 1 970, a miners’ strike and a dock strike
rule at electricity
’

in 1972 and a ban on overtime by miners and electric power workers in

1973-4. The content of the regulations has depended on the kind of
emergency situation: wide powers to fix food prices, requisition property
and prohibit public gatherings may be conferred, but in the periods of
emergency since 1945 the action taken in pursuance of the regulations47
has had only a mild impact on the ordinary citizen and the emergencies
have not been accompanied by civil disturbances apart from some acts of
mob violence and intimidation of non-strikers in 1972. Potentially, how-
ever, very extensive authority could be exercised by the police and the
armed forces under the Acts, 48 quite apart from their common-law powers
and duties to secure the maintenance of public order.

46. The late Sir Carleton Allen’s suggestion (Law and Orders (3rd edn), p. 378) that
preventive detention orders might be made under the Emergency Powers Act 1920 is
sustainable only if such detention is differentiated from punishment.
47. In 1948 the strikers went back to work before any regulations had been issued.
The proclamation of emergency had an immediate psychological effect.
48. For critical comment, see Ronald Kidd, British Liberty in Danger , pp. 48-51.

National Emergencies 507

 Part Six
Administrative Law

In this Part we present an introduction to the most rapidly developing

area of public law in this country -r the law of public administration, or
administrative law. The subject has vast ramifications; here we confine
ourselves to those aspects which have general constitutional
importance.
Chapter 24 explains what administrative law is about and why it
aroused so much passionate controversy in the past. It goes on to classify
the different types and forms of decisions in the law of public
administration and outlines their procedural characteristics. As we shall
see, the picture is untidy.
In chapter 25 we examine the part played by special tribunals and
statutory inquiries in the general scheme of administrative law. We note
the work of the Committee on Ministers’ Powers and the Franks
Committee on Administrative Tribunals and Enquiries; the effect of the
Tribunals and Inquiries Act 1958 and the functions and influence of the
;

Council on Tribunals.
Chapter 26 summarizes the rules evolved in a very large number of
decided cases. It deals with the general principles governing judicial
review of administrative acts, orders, decisions and omissions. The
principles are illustrated by a selection of judicial decisions. In the 1960s
the courts became less reticent in reviewing administrative acts and
decisions, laying down more exacting standards of legality and fair
procedure to be observed by the Administration. In particular, the courts
widened the scope of the duty to observe the rules of natural justice in the
course of arriving at administrative decisions, and emphasized the
importance of a more loosely formulated ‘duty to act fairly’. One
consequence of judicial activism has been a big increase in the number of
reported cases on administrative law.
Some of the principles applied by the courts have already been
illustrated in earlier chapters, notably those on subordinate legislation

(chapter 15) and local government (chapter 18).

In chapter 27 we outline the main features of the more important
remedies in administrative law. This is a complex subject which tends to
generate unnecessary confusion. Simplification of the law has been
proposed, and perhaps will be achieved in the not too distant future.
Chapter 28 is about civil proceedings for damages and other private law
remedies by and against the Crown, with sidelong glances at
proceedings against other public bodies. Here again the law has
controversial features, and there has been a dramatic change in the attitude
of the courts towards ‘Crown privilege’ - claims by Ministers to withhold
relevant evidence from production in legal proceedings on the ground
that its disclosure would be injurious to the public interest.
The final chapter in this Part deals with redress of individual grievances
outside the system of the courts, tribunals, formal inquiries, and
proceedings in Parliament. In particular we are concerned with the
Parliamentary Commissioner for Administration (sometimes called the
Ombudsman), and we attempt a preliminary assessment of his work. This -

chapter links up with earlier chapters on ministerial responsibility and the

functions of the House of Commons.

510 Administrative Law

 Chapter 24
Administrative Law:
Introduction

Definition and scope 1

In 1846 a Select Committee on Legal Education urged that

administrative
law was a subject fit to be taught at universities. 2 In 1888 Maitland,
the
great legal and constitutional historian, observed: 3

If you take up a modern volume of the reports of the Queen’s Bench

Division
you will find that about half the cases reported have to do with rules of adminis-
trative law; I mean with such matters as local rating, the powers of local
boards
the granting of licences for various trades and professions, the Public
Health
Acts, the Education Acts, and so forth.

But 1935 Lord Hewart, then Lord Chief Justice of England (writing in
in
the News of the World ) dismissed
the term administrative law as ‘Con-
tinental jargon \ 4
1.
Now, it is not very profitable to juggle with definitions. Still, such a
divergence of opinion is remarkable. How did it arise?
The short answer lies in the influence exerted by Dicey. Writing shortly
before Maitland, he argued that the rule or supremacy of law was a funda-
mental characteristic of the British constitution. The rule of law implied
the absence of wide discretionary powers in the Government to encroach
on personal liberty, private property rights or freedom of contract, and the
proposition that officials and Ministers were responsible for their unlawful
acts to the ordinary courts applying the ordinary principles of law. England
had nothing corresponding to the administrative Jaw ( droit administrate) of
France, under which legal disputes involving the Government or its servants
were dealt with by a special body of administrative law applied by distinct

The leading general works are J. A. G. Griffith and H. Street, Principles of

Administrative Law (5th edn);H. W. R. Wade, Administrative Law (3rd edn); and
J. F. Garner, Administrative Law (4th edn).
2. Quoted inBrian Abel-Smith and Robert Stevens, Lawyers and the Courts p. 69. ,

3. Constitutional History of England p. 505; see also p. 501: ‘We are becoming a
,

much governed nation, governed by all manner of councils and bouuls and officers,
centraland local, high and low, exercising the powers which have been committed to
them by modern statutes.’
4. Lord Hewart of Bury, Not Without Prejudice p. 96. ,

Administrative Law: Introduction 511

 administrative courts or tribunals 5
Droit administratif rested on ‘ideas
.

foreign to the fundamental assumptions of our English common law,

and
especially what we have termed “the rule of law ”.’ 6 It gave
special privi-
leges and immunities to the State and its officials in their legal disputes
with the citizen these disputes were determined by bodies not independent
;

of the Executive; the ordinary courts had no jurisdiction in such matters.

Administrative justice was not necessarily a form of injustice, but it was
a brand of justice akin to that dispensed by the prerogative courts, such as
the Star Chamber, which were swept away by the common lawyers and
parliamentarians in Charles I’s time. With us, matters of State (or public
law) were for the ordinary courts staffed by independent judges.
To describe this picture as a caricature may be an overstatement, for
Dicey went on to qualify his generalizations and to explain some of the
positive merits of the French system 7 But his main outline was bold and
.

confident; his style was lucid and persuasive; his manner of presentation
was calculated to appeal both to insular pride and prejudice and to
conservative individualism. Generations of law students were encouraged
to treat his works with reverence.
Clearly we had (and have) no separate system of law like the French
droit administratif. In a sense, then,* we had no ‘administrative law’. And,
so ran the train of thinking, we ought not to have any, because it was the
antithesis of the rule of law as we understood it 8 Consequently, modern
.

welfare and regulatory legislation setting up special ‘administrative’ tri-

bunals to determine claims and controversies was to be viewed with serious
misgivings; it savoured of droit administratif and threatened to undermine
the ‘rule of law’, which was identified with adjudication by the ordinary
courts. Similarly, statutes and regulations giving wide discretionary powers
to Ministers and officials were constitutionally offensive, especially when
they purported to exclude or diminish judicial review of administrative
9
action . In short, administrative law was an un-English interloper, which

5. Introduction to the Study of the Law of the Constitution (10th edn), chs. 4 and 12.
See also p. 35, above.
6. ibid., p. 329. cf. Dicey’s own afterthoughts on the incursion of ‘administrative

law’ into England (1915) 31 L.Q.R. 148, reprinted as Appendix 2 to his 10th edn, edited
by E. C. S. Wade.
7. In particular, the independence achieved by the Conseil d'Etat, the central
administrative court.
8. Sec, for example, Salmon L.J.’s observation in Re Grosvenor Hotel, London (No. 2)
[1965) Ch. 1210 at 1261 I do not believe that the court would be obliged to accept
'
* . . .
:

the ipse dixit of the Minister just because he was a member of the Executive.
There is no
droit administratif in England.’ But French administrative courts
have been far more
reluctant than English courts to accept a Minister’s decision as final and
conclusive.

See, for example, C. J. Hamson, Executive Discretion and Judicial Control.

9. For polemical attacks on these trends, see Lord Hewart, The New Despotisms

512 Administrative Law

 ought not to be acknowledged as a regular member Of our legal com-
munity. If it could not be defined out of existence, it should be rigorously
curbed so as to prevent it from polluting the mainstream of justice.
With attitudes such as these we need not trouble ourselves today 10 but ,

a modern student needs to appreciate the passions formerly aroused by

these controversies, for occasionally they obtrude even now. Some people
still think of administrative law as meaning delegated legislation plus

administrative adjudication, because these were the most contentious issues

not so long ago 11 But it is more convenient to define administrative law
.

in broader terms. We can take it to mean the law relating to public ad-
ministration. In other words, it is the law relating to the organization,
composition, functions and procedures of public authorities and special
statutory tribunals, their impact on the citizen, and the legal restraints to
which they are subject. It includes the whole of the law about local authori-
ties and the services they provide, the law relating to nationalized indus-
tries, social security, and so on. Whether one includes tax law, and the law

and custom of the civil service, are matters of choice. For the purposes of
exposition, boundaries have to be drawn somewhere. Still, any compre-
hensive work on the law of public administration (or administrative law)
would be of colossal dimensions.
Books on the subject therefore tend to concentrate on matters of general
principle and on the more interesting or important points of detail. They
cannot deal exhaustively with the law relating to public highways or
transport licensing or electricity supply or social security benefits. They
will emphasize what happens when administrative action impinges on
private rights, and when claims and controversies arise in the course of the
administrative process, and they will lay particular stress on machinery
for the redress of wrongs and grievances. These matters lie at the periphery

C. K. Allen, Bureaucracy Triumphant ; Law and Orders Contrast W. A. Robson,

.

Justice and Administrative Law and see Sir Ivor Jennings, The Law and the Constitution ,
;

for defence and counter-attack. For the views of a more detached observer and
participant, see Sir Cecil Carr, Concerning English Administrative Law.
10. Thus, Lord Denning M.R. observed in Breen v. A.EM. [1971] 2 Q.B. 175 at
189: ‘It may truly now be said that we have a developed system of administrative law/
11. See p. 323. The terms of reference of the Committee on Ministers* Powers (set
up in 1929) were, significantly, ‘to consider the powers exercised by or under the direc-
tion of (or by persons or bodies appointed specially by) Ministers of the Crown by
way of (a) delegated legislation and (b) judicial or quasi-judicial decision and to report
what safeguards are necessary to secure the constitutional principles of the sovereignty
of Parliament and the supremacy of the law.* Professor Robson observed (op. cit.,
(3rd edn), p. 423): ‘The committee started life with the dead hand of Dicey lying frozen
on its neck.’ For the Committee’s Report, see Cmd 4060 (1932) its main value lies in the
:

review of delegated legislation.

Administrative Law: Introduction 513

 rather than the core of public administration. They are nevertheless of
constitutional importance - the
between matters of constitutional law
line
and administrative law is indeterminate - and in a general book on
constitutional law they must be singled out for special consideration.
The overwhelming bulk of administrative law is statutory; it is to be
found in public and private Acts of Parliament and subordinate legis-
lation. Some is embodied in internal regulations for the civil service, some
in departmental circulars, some in unwritten constitutional conventions.
Some can be extracted from decisions of courts and statutory tribunals. In
quantitative terms the body of judge-made administrative law is relatively
small; 12 qualitatively itmatters a good deal.

Decisions

Decisions in public administration can be classified in various ways. For

example, is the decision legislative or non-legislative, judicial or non-

judicial? Does the decision involve the exercise of a power or the per-
formance of a duty? Which type of administrative authority makes the
decision ? Does it have to be made after a hearing, or is it subject to a sub-
sequent hearing before it has final effect, or can it have effect without any
hearing at all? Is it subject to appeal or review, and if so, what body is
vested with the appellate or supervisory jurisdiction?

Classes offunction 13

Functions may be classified as legislative, administrative, judicial, quasi-

judicial and ministerial. None
of these terms is unambiguous or self-
explanatory and there is often scope for appending two or more labels
to a specific act or decision, to the confusion of all students. Briefly, we can
state the ingredients of a typical function belonging to the main classes:

1. A legislative function involves making rules of general application with

prospective effect. Legislation is made by Acts of Parliament, statutory
instruments, other regulations and by-laws.
2. An administrative (or executive) function may involve making policy
or carrying out a policy or simply deciding what is the most appropriate
thing to do in particular circumstances. Examples of administrative
decisions are determining new standard terms of public contracts, placing

12. But only relatively. There are several thousand reported decisions delivered by
the superior courts of this country in the field of administrative law.
13. For fuller analysis of the terminology used, see de Smith, Judicial Review of
Administrative Action (3rd edn), ch. 2.

514 Administrative, Law

public contracts, making decisions on public appointments, and allocating
resources such as council houses.
3. A judicial function involves the determination of a question of Jaw or
fact by reference to pre-existing rules or standards/

4. A ministerial act is not normally something done by a Minister; it is

the performance of a legal duty (for example, to refund overpaid income

tax) into which no element of choice or discretion enters.

We shall have to use these terms because they are in common currency.
The term ‘legislative’ does not give rise to a great deal of difficulty in

most of us can recognize legislation when we see it; but we

practice, f9 r
also know that legislative rules can have retrospective as well as prospective
effect, that they may simply restate (by consolidation or codification) exist-
ing law, that the boundary line between a not very ‘general’ legislative
rule and particular administrative decisions affecting many people can
become so blurred as to be imperceptible, and that judges sometimes change
the law under the guise of declaring or interpreting it.

Difficulties lurk in the terms ‘administrative’, ‘judicial’ and ‘quasi-

judicial’ when they are being contrasted with one another. ‘Quasi-judicial’

is, on the whole, a superfluous adjective which increases rather than

diminishes confusion. Usually it means a discretionary (administrative-

type) decision preceded by a judicial-type procedure (for example, con-

firming a compulsory purchase order after a local inquiry), but the term
is also sometimes used to describe the final decision itself and sometimes

to describe the preliminary procedure.

As we have seen, ‘administrative’ acts are what administrators typically

do and ‘judicial’ acts are what judges typically do. This terminology does

not preclude us from saying that officials (administrators) can perform

analytically ‘judicial’ functions - for example, deciding (subject to appeal)
that X is legally obliged to pay £100 in capital gains tax, or that publica-

tions imported by Y Z is not legally entitled to unem-

are obscene, or that
ployment benefit - or that judges, especially in the Chancery Division, have
to exercise wide discretionary powers. A law student’s problem (sometimes
so puzzling as to seem insoluble) lies in the fact that judges in the reported
cases on administrative law use the terms inconsistently. A function that is
judicial in one context is labelled ‘administrative’ in another context.
Occasionally these discrepancies are nothing more than an inelegant use
of language; occasionally they are attributable to the looseness of the
concept of ‘administrative’ functions; more frequently they can be ex-
1

plained by looking for the legal consequences of calling a function ‘judicial

or ‘administrative’ as the case may be.

For example, T’s licence to sell peanuts in the street is revoked by the

Administrative Law: Introduction 615

 local authority.No appeal is provided by statute. T applies to theDivisional
Court of the Queen’s Bench Division for an order of certiorari
to quash the
decision on the grounds that the council acted ultra vires
and refused to
give him a hearing according to natural justice. Revocation
of a licence is
analytically an administrative act, if a decision whether
or not to revoke
is discretionary. The courts have sometimes said that
certiorari will issue
to quash only judicial acts. They have also said many times that
an obliga-
tion to observe the rules of natural justice arises only where
there is a duty
14
to act judicially ; and they have quite often held that such a duty does not
arise where the competent authority’s functions are analytically
administra-
13
tive . But if a court were to conclude that the local authority had acted
ultra vires , would make no bones today about quashing its decision by
it

certiorari; and if it thought that in fairness to a licensee the

authority ought
to have given him a proper hearing before taking away his livelihood,
it
would probably hold that the authority was obliged to ‘act judicially’
according to natural justice 16 In the course of the judgments one might
.

even find a dictum that taking away a licence was a ‘judicial act’. Suppose,
however, that an action for defamation was brought against a member of
a local authority for words used by him during a licensing meeting. If he
pleaded absolute privilege by way of defence, the court would find against
him; the proceedings of the authority would not be ‘judicial’ for that
purpose 17 .

Duty and discretion

The contrast between public duty and discretionary power is ostensibly
clear cut. A duty is an act
that must be performed; thus, a tribunal has a
duty to entertain an application or appeal in a matter within its jurisdic-
tion; a local authority has a duty to grant a rate rebate when prescribed
conditions are satisfied. Performance of such a duty can normally be
18
enforced in judicial proceedings . Compliance with some of the statutory
14. The observation in the text is tautologous, since a duty to act judicially usually
means a duty to observe natural justice,
15. Sec pp. 541, 566-7, 573. This view is on the wane.
16. Thus refusing to follow (or distinguishing) Nakkuda Ali v. Jayaratne [1951]
A.C. 66 and R. v. Metropolitan Police Commissioner , ex p. Parker [1953] 1 W.L.R.
1150.
17. Hence the member would be able to claim qualified privilege only: Royal
Aquarium etc. Society v. Parkinson [1892] 1 Q.B. 431.
18. See further pp. 550 and 590-92. But some public duties (for example, to provide ‘a
varied and comprehensive educational service*) are so widely framed that no court
will direct their enforcement at the suit of a member of the public; and others (for
example, those imposed on certain public corporations administering nationalized
industries) are expressed to be unenforceable in any court; see pp. 48 and 214. Duties
unenforceable by a court obviously resemble statutory powers in this context.

51 6 Administrative Law
 duties cast on local authorities is enforceable by Ministers exercising default
powers.
A discretionary power implies freedom of choice; the competent
authority may decide whether or not to act (for example, whether to order
how to act (for example, with
television sets for local schools) and, if so,
whom should the order be placed; how many sets should be bought?). In
practice, duties and powers tend to be interwoven. Seldom does a public
body have no discretion at all as to the circumstances in which it is to
perform a duty. Police officers, who have a general duty to enforce the
law, have a limited discretion to abstain from prosecuting for particular
offences. And discretionary powers are normally accompanied by express
or implied duties. For instance, a licensing authority may have a discretion
to attach such conditions as it thinks fit when granting a licence; but it will
be under a legal duty to exercise a genuine discretion in each individual
case, and not fetter its choice by adopting rigid rules; and the conditions
imposed must not be irrelevant to the purposes for which the power was
conferred on it.

Decision-makers

Powers and duties to make decisions in public administration may be

vested in the Crown, Ministers, government Departments, civil servants,
public corporations and their officers, local authorities, local government
officers, tribunals and courts. The distribution of functions among them
is not predetermined by any grand design; it is a product of historical

accident, tenacious tradition, experiment, and largely uncoordinated

decisions about the most appropriate ways of handling individual prob-
lems. Patterns are irregular, reflecting the untidy structure of administra-
tive authority in England. A few points should be noted; some have already
been mentioned in earlier chapters:

1. Government Departments with ministerial heads did not assume an

important role in the provision and regulation of social services till the
late nineteenth and early twentieth centuries. Even today, the main pro-
viders of public services (for example, education, environmental planning,
housing, public health) are the elected local authorities. They have been
joined by semi-autonomous public corporations (for example, for broad-
casting, hospitals, and the management of nationalized industries). The
primary initiative in the direction of national policy, particularly in legis-

lative change and the allocation of financial resources, rests with the
central government, but the immediate impact of administrative decisions
on the individual citizen generally occurs at a lower level.

Administrative Law: Introduction 517

2. Decisions by government Departments directly affecting individual rights
are usually made by officials in the Minister’s name. Powers are sometimes
conferred by statute on specified classes of officials (for example, immi-
gration officers, customs and excise officers, district auditors and inspectors
conducting inquiries) to be exercised in their own official capacities.

3. Local authority decisions are usually taken by councils or committees

of councils. Officials do not have a general power to act on the council’s
19
behalf, but since April 1974 very wide powers can be delegated to them.
Some functions are vested by statute directly in specified officials (for
example, medical officers of health).
4. Decision-making by tribunals in the sphere of public administration has
a long history. For centuries the local government authorities in the
counties were the justices of the peace, who granted licences, regulated
taverns, enforced the poor law and the upkeep of highways and bridges,
and so on, under judicial forms. Most of their administrative functions
passed to elected local authorities in the nineteenth century, but some
survive — for example, liquor licensing - and other administrative juris-
diction has been vested in magistrates’ courts, notably the hearing of
appeals from certain decisions by local authorities. The licensing of gaming
clubs is partly a matter for the Gaming Board, an independent investiga-
tory and regulatory body which decides whether to issue certificates of
consent, and partly for committees of local magistrates who then decide
20 *
whether to grant licences.

5. The justices of the peace and borough corporations were subject,

during the Tudor and early Stuart periods, to control by the King’s
Council and the Star Chamber. This was replaced after 1660 by the super-
visory jurisdiction of the Court of King’s Bench. The basic features of this
supervisory jurisdiction survive and have been extended to other types of
decision-making bodies.

6. Particularly since the Second World War, power to determine a wide

range of claims and controversies in administrative law has been vested in
21
specialized ‘administrative’ tribunals. The jurisdiction of these tribunals
may be original or appellate. The High Court has powers to review their
determinations.
22
7. The functions of the superior courts in administrative law are varied :

they include appellate and supervisory review of determinations by inferior

19. See p. 388.-

20. Betting, Gaming and Lotteries Act 1963; Gaining Act 1968.
21. See ch. 25.
22. See chs. 26-8.

51 8 Administrative Law
 tribunals, and affording legal redress for wrongful acts
committed by oth
**
administrative bodies. Seldom do they have power to make
a discreti
decision themselves in the first instance, though there are important
ceptions - for example,. the Restrictive Practices Court.
a

Decisions with or without a hearing

Obviously most decisions in the fields of government and administration

have to be taken without a formal inquiry or hearing. If a Minister
has
to make a major policy decision, he will normally consult the main
interest
-
groups likely to be affected and in some situations he will be
under
a statutory duty to do so - but government could not be carried on if
every
important decision had to await the outcome of a full-dress inquiry.
Some
policy decisions affecting a large number of private individuals
in a
locality - for example, a decision as to the route of a motorway, or
whether
to develop an area as a new town - will be preceded by a formal
public
inquiry. But a decision by a Minister to refuse an application for a pass-
port, an export or import licence, an industrial grant or loan, an office
development permit or an industrial development certificate can be made
summarily, without any antecedent hearing, though informal representa-
tions before and after the decision may be entertained. And clearly
decisions made on departmental initiative (for example, to vary rates of
taxation) will not usually entail formal hearings either before or after the
event.
Again, a great number of decisions made by other public bodies will be
made without any formal hearing or inquiry - for example, decisions to
close an uneconomic pit, or to refuse an application for the installation

of a telephone or for the allocation of a council house or a place in an old

people’s home; or to place a contract with X rather than with Y orZ, or
to promote P rather than Q or R. It does not follow that such decisions
will be capricious; they may be regulated or influenced by administrative
precedent or general guiding principles; they may be preceded by thorough
investigations and personal interviews even though these are not required
23
by law; in some instances they will be subject to appeal .

Nevertheless, the formal pre-decision hearing or inquiry is an important

24
feature of the administrative process in England . Thus, one who applies

for a licence to operate a commercial air service or a betting shop, or who

claims compensation for injuries sustained as a result of violent crime, will

be entitled or may be required to appear before a board or tribunal which

23. For example, under the Sex Discrimination Act 1975. See above pp. 436-8.
24. See generally R. E. Wraith and G. 13. Lamb, Public Inquiries as an Instrument of
Government (1971).

Administrative Law: Introduction 519

 will make the decision. If there are objectors to his application, they too
will, in some instances, be entitled to a hearing. Of more general importance
is the statutory procedure followed where public authorities wish to take
away or restrict the exercise of private rights in land. A
person whose
propertythe subject of a compulsory purchase order is entitled to
is
be
heard at a formal local inquiry before the order can be confirmed; this
safeguard is absent from the legal systems of many other developed
countries. Again, a local inquiry must be held if objections are lodged
against proposals to close an uneconomic railway line or to impose certain
types of street restrictions.

Appeals

More common than a statutory right to a prior hearing is a right to be

heard appeal against an administrative decision. Three preliminary
on.
points .need to be made:

1. A right of appeal is the creature of statute and it can only be conferred

by express language. There is no such thing as an implied right of appeal

to a court or any other body.

2. The absence of a of appeal does not necessarily mean that a

right
decision cannot be challenged at all in a court of law. The jurisdiction of

the High Court in matters of administrative law is supervisory as well as

appellate. This question will be examined in chapters 26 and 27.

3. There is no clear pattern of rights of appeal. This point emerges only

too plainly from the following outline sketch:

Ministers and civil servants. In general, no appeal will be provided against

discretionary decisions involving questions of national policy or the
allocation of scarce resources. Reference was made earlier to discretionary
decisions made without a no right of appeal is provided
prior hearing;
against any of the classes of decisions there illustrated. But there is no
universal rule in this matter. The Immigration Appeals Act 1969 gave
rights of appeal to adjudicators from discretionary decisions of immi-
gration officers, and to an Immigration Appeal Tribunal from discretionary
orders by the Secretary of State for the deportation of aliens. However,
under the Immigration Act 1971 the more politically sensitive types of
25
decision were removed from the scope of the appellate system.
. Where a decision by a Minister or a civil servant entails the determina-
tion of a question of law, appeal often lies to an independent tribunal or
the superior courts; rights of appeal to the courts are usually confined to

25. See pp. 420-23.

520 Administrative Law

the legal issues. From decisions on liability to income tax, an appeal lies
to the Commissioners of Income Tax (a special tribunal), and thence to the
Chancery Division of the High Court. If a local planning authority con-
siders that planning restrictions have been contravened, it may issue an
enforcement notice; the person aggrieved may appeal to the Secretary of
State against the notice, and if dissatisfied with the Secretary of State’s
decision he may appeal on a point of law to the Divisional Court of the
Queen’s Bench Division. A person dissatisfied with a decision of an officer
of the Department of Health and Social Security holding that he is not
entitled to a social security benefit may appeal to a local appeal tribunal
and thence to a National Insurance Commissioner.
Public corporations Decisions
. made by bodies administering nationalized
industries are seldom subject to appeal; they are on a similar footing to
decisions by privately owned commercial and industrial undertakings.
Persons aggrieved by determinations made by officers of the Supple-
mentary Benefits Commission may appeal to special tribunals. Air licens-
ing decisions by the Civil Aviation Authority are appealable to the Secre-
tary of State for Trade. 26

Local authorities Here again, allocative decisions - decisions on the dis-

.

cretionary allocation of limited resources - are not, as a rule, appealable,

but there are a number of exceptions! The statutory designation of appel-
late bodies can only be described as bizarre. For example, a full appeal lies
to magistrates’ courts against the merits of various kinds of licensing
decisions (for example, the licensing of theatres, street traders, massage
establishments); to the Crown Court against decisions on cinema licensing;
and to a county court against a decision to make an order for the demoli-
tion of an individual insanitary house. Appeals against decisions to refuse
planning permission (i.e., permission to ‘develop’ land by making a
material change of use), or to grant such permission subject to conditions
to which the applicant objects, lie to the Secretary of State for the Environ-
ment or, in cases of minor development raising no big policy issue, to an
inspector exercising delegated powers. These appeals have reached a level
of over 10,000 in a year; they are decided either on the basis of written
representations or following a local inquiry.

Special tribunals

Some administrative tribunals exercise original iurisdiction; some are

appellate bodies. There is usually (but not always) an appeal on the merits
of the decision from a tribunal exercising original jurisdiction to a superior
tribunal; in a few cases the appellate authority is a Minister. Appeals now
26. Civil Aviation Act 1971.

Administrative Law: Introduction 521

lieon points of law to the superior courts from the dee's'ons of a rnajc**:..
of tribunals of last instance. In mos. cases the appelate tribunal is the
Divisional Court of the Queen’s Bench Division, but even in this context
there is no uniform pattern; appeals lie in income tax cases to a Chancery
judge; from service pensions appeal tribunals to a Queen’s Bench judge;
from the Transport Tribunal, the Lands Tribunal, the Foreign Com-
pensation Commission and the Patents Appeal Tribunal to the Court of
Appeal; and from some professional disciplinary bodies to the Judicial
Committee of the Privy Council.

In general

We appear to be losing ourselves in a labyrinth through which even the

most expert guide couid not be relied on to conduct us. Are there, then,
no general principles of English administrative law ? Is there but a wilder-
ness of individual instances ? An answer can be offered at two levels. In the
first place, to achieve a full mastery of the subject one requires an

encyclopedic range of knowledge which is hardly worth while acquiring.

So much depends on the wording of particular legislation, which is in-
fluenced by a motley array of policy considerations. Development of the
law has been pragmatic, empirical, even adventitious; only occasionally do
broad general principles intrude into the devising of a legislative scheme,
and these intrusions tend to operate in the area of the procedure followed
in decision-making rather than in the substantive structure and inter-
relationship of authority. Secondly, if one concentrates on the part played
by the courts in affording legal redress for grievances, the law is still com-
plex and rather confusing, but it is possible to elicit general principles
'

according to which the courts will afford remedies and redress to a person
aggrieved by administrative action. These principles sometimes have to be
stated at a high level of generality, but they are at least intelligible.
At the time of writing, public attention has focused on a number of
judicial interventions in the administrative process. There can be no doubt
that- in 1976 and 1977 the courts have reached several decisions relevant
to the development of English administrative law. We may doubL though,
whether these cases deserve the publicity attracted and whether they mark
any significant advance in attitude on the part of the Judiciary.

,522 Administrative Law

 , /
!>«• i ,*»>% «S» T f* » rj*=w

\teS^ M if Oil |w^ tL ^h*1' U muon W'

Tribunals and Inq uirlas

In general 1

A section of the Report of the Committee on Ministers’ Powers in 19322

dealt cursorily and, on the whole, superficially, with the judicial and
quasi-judicial powers of the administration. First, it touched on specialized
courts, such as professional disciplinary bodies and tribunals dealing with
fiscal disputes, the members of which were not appointed by Ministers. It

passed on to consider special ‘courts’ -the defunct Railway and Canal

Commission, the Railway Rates Tribunal and the board of referees, and
the still surviving Special Commissioners of Income Tax and the Registrar

of Friendly Societies - appointed by Ministers. There was nothing sinister

about these independent judicial bodies. But then there were the ‘Minis-
terial tribunals’ -specialized courts of a more informal character, of
original or appellate jurisdiction, appointed by Ministers for the purpose
of determining justiciable issues arising in connection with the work of
a government Department. These were unemployment assistance, war
pensions and other social security tribunals. Only in exceptional circum-
stances should judicial functions be assigned to Ministerial tribunals. Still
more open to objection was the practice of entrusting judicial functions to
Ministers. The judicial features (the ascertainment of questions oi
fact) of a quasi-]ud.\c\a\ function entrusted to a Minister (for example a
decision whether or not to confirm a slum clearance order after a public
local inquiry) would be better entrusted to a tribunal independent of the
Minister.
This part of the Report has exercised hardly any influence on legislative

policy; it was unrealistic and overweighted with a bias in favour of the

1. The best general review is R. M. Jackson’s Machinery of Justice in England (6th

edn), ch. 6.The Report of the Committee on Administrative Tribunals and Enquiries
(the Franks Committee (Cmnd 218 (1957)), is prescribed reading. The published
Minutes of Evidence of the Committee also contain a wealth of information. See also
the Tribunals and Inquiries Act 1971 and any of the Annual Reports of the Council on
Tribunals (I1MSO). Sec fuithcr Wraith and Ilutehcsson; Administrative Tribunals
G. Ganz, Administrative Procedures (1974), ch. 4^J. A. Farmer,
(1973), Tribunals and
Government (1974).
2 Cmd 4060 (1932), s. III.

Tribunals and Inquiries 523

ordinary courts. But perhaps its one unfortunate effect was to instil the
impression that what it called ‘Ministerial tribunals’ were organs of ad-
ministration, malleable instruments for the implementation of political
policy. In 1957 the Report of the Franks Committee on Administrative
Tribunals and Enquiries went a longway to remove this misconception. By
time statutory tribunals appointed by Ministers had proliferated. The
this
Committee did indeed prefer to see judicial functions vested in the courts
rather than special tribunals, and in special tribunals rather than in
Ministers. However, it did not label special tribunals as ‘Ministerial
tribunals’. It insisted that tribunals were not ‘appendages of Government
Departments’. It considered that tribunals ‘should properly be regarded
as machinery provided by Parliament for adjudication rather than as part
3
of the machinery of administration’, and it made detailed proposals
designed to integrate them more closely with the general judicial system
of the country. It drew a sharp distinction between ‘administrative’ ad-

judication, on the one hand, and discretionary decisions reached by

Ministers following a local inquiry, on the other. Its proposals for reform-
ing procedures involving inquiries in matters affecting the regulation of
land use were radical but far better informed and more realistic than those
of the 1932 Committee. Its detailed recommendations were too persuasive
4
to be ignored, and most of them have been implemented. Today no
reasonably well-read student has any excuse for confusing tribunals with
inquiries. Whitehall’s terrible twins are neither terrible nor twins.
The Franks Committee itself was an outstanding example of a particular
type of public inquiry. Its members were appointed by the Lord Chancellor,
not under statutory authority but in virtue of the prerogative. They were
judges, former high-ranking civil servants, practising lawyers, leading
academics, trade unionists, elder statesmen, active politicians. It was
directed to inquire into and make recommendations on matters raising
broad issues of public policy. It sat in public to receive oral evidence from
officials and others; it obtained a number of written memoranda;
it

accumulated and published a mass of factual information, much of which

had not previously been divulged to the public; it was a new clearing-house
for informed opinion and original ideas. Its report stimulated public debate
and rcfertilizcd official thinking. In substance it fulfilled the role of a Royal
Commission (the members of which are appointed by Her Majesty on the
Prime Minister’s advice) and unlike so many Royal Commissions, its
5
recommendations were not disregarded.
3. Cmnd 218 (1957), §40.
4. See pp. 28-39 of the Report of the Council on Tribunals for 1963, summarizing
the extent to which the recommendations had been adopted.
5. The appointment of a Royal Commission is sometimes
prompted by a Govern-
ment's desire to avoid making a decision on an awkward question. The matter can be

524 Administrative Law

 Public inquiries are basically instruments of governrhent 6 (using the term
‘government’ in the broadest sense) or Parliament. As instruments of
Parliament, or a House of Parliament, their role may be to investigate an
alleged public scandal, or a national disaster such as the Aberfan catas-
Upon a resolution of both Houses, a tribunal headed by a superior
trophe. ‘ ’

judge may be appointed under the Tribunals of Inquiry (Evidence) Act

1921. 7 The up a select committee of the House of
practice of setting
Commons a matter fell into disuse after the partisan
to inquire into such
report and debate on the Marconi scandal in 1913. There are other alterna-
tives. Disquiet about covert official telephone-tapping, security leaks, ‘D*
Notices, interrogation techniques in Northern Ireland and the use made by
former Ministers of ‘confidential’ information for their memoirs has led to
the appointment by the Prime Minister of ad hoc committees of Privy
Councillors to inquire and report; the outcome has sometimes been em-
barrassing to the Government. Lord Denning investigated aspects of the
Profumo affair. 8 Major security leaks are now referred to a Security Com-
mission under a superior judge. Another non-statutory technique,
commonly employed, is for Ministers to appoint a departmental or inter-
departmental committee of inquiry into a particular issue - for example,
section 2 of the Official Secrets Act 1911. 9 Again, a Minister may appoint
a committee or an independent person to inquire into serious complaints
about the conduct of officials. The Crichel Down inquiry, conducted by a
Q.C., was such a case. 10 The publication of the Report led to the censure

shelved till the Commission has reported; the Government may then spend several
months formulating its own reactions to the recommendations, and may find itself
supplied with new reasons why nothing of importance should or could be done. See
T. Cartwright, Royal Commissions and Departmental Committees in Britain (1975).
J.
See R. E. Wraith and G. B. Lamb, Public Inquiries as an Instrument of Government
6.

(1971) - the fullest study of the subject.

7. cf. G. W. Keeton, Tual by Tribunal ; and the report of the Royal Commission
on Tribunals of Inquiry, Cmnd 3121 (1966) suggesting procedural reforms, which the
Government accepted: Cmnd 5313 (1973). So far no such reforms have been enacted.
For the controversial Vehicle and General Inquiry (Report, H.C. 133 (1971-72)) see
p. 167. In 1972 Lord Widgcry conducted a one-man judicial tribunal of inquiry into
the incidents on ‘Bloody Sunday’ in Londonderry: see Report, H.C. 220 (1971-72).
These tribunals (unlike most of the other types of inquisitorial bodies) have powers
to subpoena witnesses and to require the production of documents.
For his report, see Cmnd 2152 (1963).
8.

9.For the second Franks Report (Cmnd 5104) (1972), see ch. 21. The first Franks
Committee was also, in a sense, a departmental committee, though the Lord Chan-
cellor, who appointed it, occupies a kind of ‘crossbench’ position.
10. See Cmd Mod. L. Rev. 557; Chester (1954)
9176, 9220 (1954); Griffith (1955) 18
32 Public Administration 389. Cliche! Down had been compulsorily acquired by the
Air Ministry as a bombing range. Alter the war it was handed back to the civil
authorities. Lieut.-Commander Marten, the son-in-law of the former owner, wished to
buy it or alternatively to become the tenant farmer of the area. The civil servants

Tribunals and Inquiries 625

 and some officials, to the resignation of the Minister of Agri-
transfer of
cultureon his own initiative, and indirectly to the appointment of the
Franks Committee (from whose terms of reference the Crichel Down type
of situation was, nevertheless, excluded).
Other types of formal inquiry -may be held under statutory authority to
investigate allegations or suspicions of malpractice or culpable negligence
or organizational deficiencies - for example, an inquiry by Department of
Trade inspectors into' the affairs of a company; or an inquiry into the
causes of an aircraft, shipping, railway or mine disaster or a factory acci-
dent; or a military ‘court of inquiry* into an untoward incident that re-
quires special investigation; or an inquiry into complaints against police
officers.

The common features of these inquiries are (i) that the persons con-
ducting them are expected to hold hearings and ascertain facts about
specified matters of public concern and (ii) that they do not make decisions
,

though their findings and recommendations may be a foundation for

decisions by others, including decisions to institute legal proceedings. In-
deed, in some situations a finding of culpability, or of a prima facie case of
culpability, may be a necessary condition for the institution or continuance
of such proceedings. But the fact that the investigating body may be called
a ‘court* or ‘tribunal* does not endow it with the characteristic power of
a judicial body to make decisions. On the other hand, an inquisitorial body
may exceptionally be endowed with such powers. In the Plantagenet period,
the itinerant royal justices in eyre conducted inquisitions and also punished
transgressors. The verdict of a coroner’s inquest in a case of homicide may
assert that X was legally culpable but does not amount to a conviction
though it may be the foundation of criminal proceedings against X; a ver-
dict that Y committed suicide does, however, have binding legal effect; and
so does a verdict that Z, who has found ancient precious coins, is legally
entitled to them because they do not come within the definition of treasure
trove. 11 Inspectors conducting inquiries in town planning law are generally
restricted to finding and reporting on facts, and recommending a decision
to be taken by or on behalf of the Minister; since 1968, however, power
to make decisions in consequence of certain types of inquiries has been
delegated by the Minister to the inspectors themselves. 12 In these few inter-

concerned decided to re-equip the estate, to let it to another tenant, and not to accede
to Marten’s requests, but failed to keep him properly informed and created false
impressions in his mind. Marten pursued his grievance through political channels. The
procedure for dealing with the disposition of such land was not regulated by statutory
rules.
11. Treasure trove is hidden (as distinct from abandoned) treasure, and belongs to
the Crown in virtue of the prerogative.
12. See now Town and Country Planning Act 1971, Sched. 9; S.1. 1972, No. 1652.

526 Administrative Law

 mediate zones the distinction between tribunals and inquiries disappears*
the investigator is the tribunal.
The typ cal inquiry - one which does not culminate in a binding decision
by the person who presides at the hearing - may be directed to a very wide
range of public purposes. The point is well illustrated by an Order made
13
in 1967, bringing within the purview of the Council on Tribunals 14
no
fewer than sixty-five different types of discretionary inquiries held in pur-
suance of statutory powers. They ranged from inquiries held in pursuance
of section 5 of the renowned Fisheries (Oyster, Crab, and Lobster) Act 1877
(empowering the Board of Trade, after receiving local representations and
holding such public inquiry as it thinks expedient, to make orders tem-
porarily prohibiting dredging for oysters from banks in the locality) to the
committee of inquiry appointed by the Home Secretary to advise him
before he decides whether to deprive a naturalized or registered citizen of
his citizenship. 15
And they included inquiries that may be held by a person
appointed by a Secretary of State for a large number of administrative
purposes in local government law - for example, before the Secretary of
State confirms various statutory schemes. Add to these all the sundry types
of inquiries which a Minister must cause to be held when a prescribed state
of affairs exists (for example, when he entertains an appeal against certain
administrative decisions taken at a lower level), and the indeterminate
miscellany of situations in which a discretionary inquiry may be set up
16
without statutory authority, and one has a very mixed bag. One finds, for
example, Acts providing that before certain kinds of subordinate legis-
lation can be made or confirmed a statutory inquiry may or must be held. 17
If one can offer any useful generalizations in this variegated field of public
law, they ought to be focused rather on the public local inquiry. Local
18
inquiries are used for three main purposes:

1. As a means of consulting and informing and gleaning

local opinion,
local information as to the likely impact of a proposed administrative
decision (for example, to alter constituency or local boundaries, or to
amalgamate police forces) affecting the interests of persons and bodies in
that locality. This slows down the pace of decision-making but provides
the decision-maker with a better fund of knowledge.
13. S.I. 1967, No. 451.
See pp. 536-7, 540, 545. 546.
14.
15. British Nationality Act 1948, s. 20(7).
16. In general, persons conducting inquiries in pursuance of statutory powers have

authority to compel the attendance of witnesses and the production of documents, and
those conducting non-stututoiy iiuiuiiics have not.
17. See, for example, Radioactive Substances Act 1948, s. 9; Grilfith and Street,

Principles of Administrative Law (5th edn), p. 127ff.

18. Neat classification is impossible. See Wraith and Lamb, op. cit., chs. 3, 4, 8.

Tribunals and Inquiries 527

 2. As a means of giving those whose interests will be most directly
affected
by a proposed or provisional decision (for example, to make
an order for
the compulsory purchase of their land or to designate
an area as the site
of a new town) the legal right to put their objections orally,
and through
legal representatives, to a person appointed by the
Minister or another
competent authority before a final decision is made. Other points
of view
may be expressed at the inquiry, and the outcome should (as in (1)) be
conducive to better decision-making. Purposes (1) and
(2) are comple-
mentary. In some cases the scope of inquiry will be confined to
the
objections and not directed to the general merits of the proposed order.

3. As a stage in the process of determining appeals against an administra-

tive decision that has already been taken. The best-known examples arise
in planning law-.
X
applies to his local planning authority for permission to make a
material change in the use of his land; planning permission is refused, or
is granted subject to conditions that X
dislikes; X
is entitled to appeal to
the Secretary of State for the Environment; the Secretary of State causes
a local inquiry to be held through an inspector; the inspector makes a re-
port and the Secretary of State (or a civil servant on his behalf) decides. 19
Y, without asking for planning permission, sets himself up in business in
his private house; the local authority issues an enforcement notice directing
him to discontinue this unauthorized change in the use of his land; Y con-
tends that no permission was required for this particular change of use, and
appeals to the Secretary of State; the latter sends down an inspector who
holds a local inquiry and makes a report; again the decision on this appeal
is made within the Department. 19

In situations (1) and (2) one can speak of judicialized administration;

in the third type of situation, judicialized administration merges into ad-
ministrative adjudication. In 1975-6 nearly 13,000 appeals of the kind
described above were decided by the Department of the Environment.
Now almost 70 per cent of the planning appeals are decided by inspectors,
and the remainder are decided on the basis of written representations with-
out a local inquiry.

20
Special tribunals

One tends to use the terms ‘special tribunals’, ‘administrative tribunals’

and ‘statutory tribunals’ interchangeably. Terminological inexactitude
19. Unless the power of decision has been delegated to the inspector; see note 12,
above.
20. The body oflitcrature on this subject is now extensive. W. A. Robson, Justice
and Administrative Law (3rd edn) is the classic pioneering work. Apart from the sources

528 Administrative Law

does not matter much in this field, because no single term could be all-

embracing; but a few preliminary points should be borne in mind.

1. Some tribunals that are commonly called ‘administrative’ deal with
disputes between private landlords and tenants. These tribunals are the
rent tribunals, rent assessment committees and agricultural land tri-
bunals. 21 Curiously enough, to many people rent tribunals are the stereo-
type of ‘administrative’ tribunals, partly because they used to evoke a good
deal of controversy in the immediate post-war years and partly because
they are still not at all like ordinary courts.
2. A small number of tribunals which can well be described as ‘admin-
istrative’ (in the sense that they deal with claims and controversies in-
volving public authorities) are non-statutory. The most important is the
Criminal Injuries Compensation Board which makes discretionary awards
out of funds provided by Parliament to claimants who are victims of
criminal violence.

3. Not all ‘special tribunals are in any conceivable sense ‘administrative’.

’

Commercial and industrial arbitrators, the disciplinary committees of

trades unions and clubs, the stewards of the Jockey Club and the Grey-
hound Racing Association are obviously not ‘administrative’; the discip-
linary committees of private organizations are called domestic tribunals.
Professional statutory disciplinary bodies are occasionally called ‘ad-
ministrative’ tribunals, but they too are domestic.

4. Tribunals exercising functions in administrative law may be designated

as tribunals, courts, boards, committees, commissioners, referees, um-
pires; the nameunimportant. The Lands Tribunal is more court-like
is

than the local valuation courts from which it entertains appeals.

5. Tribunals dispensing ‘administrative justice’ may in substance be doing
exactly the same kind of work, in a specialized field, as an ordinary court
of law, and doing it with the same degree of freedom from political pressure
and influence.

Specialized courts reach far back into English legal history. Some of
them - for example, the courts of the stannaries (the tin mines), the courts
of piepowder (for travelling merchants at fairs), and their successors, the

referred to m above, the following recent monographs can be consulted: Harry

note 1

(2nd edn, 1975); H. W. R. Wade, Towards Adminis-

Street, Justice in the Welfare State
trative Justice H. J. Elcock, Administrative Justice Kathleen Bell, Tribunals in the
; ;

Social Services N. D. Vandyk, Tribunals and Inquiries', Wraith and Hutchcsson,

;

Administrative Tribunals (1973); Bell, Social Security Tribunals (1976).

21. The Lands Tribunal (see below; also has a piivate law junsdiction to vary
restrictive covenants.

Tribunals and Inquiries 529

 .

royal courts of the staple - live on only in our history books. The ancient
Court of Chivalry was rescued from quiescent oblivion for a fleeting
moment in the 1950s. 22 The coroners’ courts are still with us. These special
courts, though standing outside the regular legal system, posed no real
threat to the paramountcy of the common law courts. The more serious
competitors - the ecclesiastical courts, the Court of Chancery, the Court of
Admiralty, the Court of Requests and the Court of Star Chamber -all
excited the jealous resentment of the common lawyers, a resentment
naturally expressed in the language of high constitutional principle. Some
of these courts survived the experience; others were destroyed or shorn of
significant jurisdiction, but left a legacy of creative jurisprudence to enrich
English law.
Neither the creation of specialized courts nor the hostility of the legal
profession need cause any surprise. And any new specialized tribunal, set
up to serve a general public purpose, could be assured of an ample measure
of initial hostility following the struggle against the Star Chamber,
especially if it neither looked nor functioned like a court of common law.
Military courts-martial, professional disciplinary bodies and commercial
arbitrators' could be tolerated. Tribunals adjudicating informally in dis-
putes arising out of social welfare legislation were another matter. The
rules they applied interfered with freedom of property and contract; their
members were appointed and removable by Ministers; often they exercised
discretionary powers which could only be reposed with safety in the hands
of Chancery or county court judges; if lawyers appeared before them at
all, everyone tended to be ill at ease. To some, their very existence was a

slur upon the legal profession and a constructive contempt of court. Dicey
and Hewart were right the rule of law was in jeopardy. So ran the train
:

of thought -one that the Committee on Ministers’ Powers did little to

disturb. Nevertheless, the Committee grudgingly conceded 23 that ‘Minis-
terial tribunals’ might, in exceptional circumstances, be preferred to the

ordinary courts on five grounds: cheapness, accessibility to the parties,

freedom from technicality, speed, and expert knowledge of their particular
subject-matter.
The climate of opinion has now changed. No longer must exceptional
circumstances be present to justify the establishment of a special tribunal
to determine controversies arising under regulatory or welfare legislation.
We have about fifty different types of these tribunals and some 2000 tri-
bunals altogether. If, for instance, the question is how disputes about the
entitlement of dismissed workers to redundancy payments from their em-
22. See p. 502, note 16.
23. Cmd 4060 (1932), p. 97. See also the Franks Report, Cmnd 218 (1957), § 38,
making the same point in less grudging terms.

530 Administrative Law

ployers ought to be decided under a new Act, there is an expectation that
the deciding body will be a special tribunal. The alternatives would be
(1)
a Minister, (2) one of the ordinary courts, (3) a specially constituted court,
and (4) an independent arbitrator. Giving the power of decision to a
Minister means in practice that the parties may not know who takes the
decision in the Minister’s name and will not be entitled to be heard before
24
that person; and they will not usually feel confident that departmental
adjudication is justice according to law. There is, therefore, a presumption
in favour of vesting the power of decision in a person or body conducting
oral hearings; this presumption may be rebutted only if considerations of
national or regional policy, for which the Minister is responsible, will often
condition the manner in which an individual
issue ought to be determined,
or if uniformity of decisionof primary importance. A possible com-
is

promise -and not a very satisfactory one -is to set up an independent

25
tribunal with an appeal to the Minister. Setting up a specialized court,
rather than a tribunal,may be to make heavy weather of small issues. The
outstanding modern example of a specialized court in the strict sense is the
Restrictive Practices Court; this is a court because it is expressed to be
a superior court of record and is presided over by a superior judge (though
it includes expert laymen); its jurisdiction (to nullify restrictive trading

agreements which are contrary to the public interest) could have been vested
in a body styled as a tribunal, and when it was first constituted there are
many who would have preferred to see that course adopted. 26 Committing
issues to independent arbitrators - the last alternative- is most appro-
priate where the number of issues arising is relatively small and a high
level of expertise, likely to be found only among specialists willing to act
as part-time adjudicators, is required.
The grounds, already indicated, for giving jurisdiction to tribunals rather
than courts are sometimes overstated. Certainly it would be absurd to
make applicants for sickness benefit or supplementary benefits go before
a High Court judge; 27 the cost, delay and formality would thwart the

objectives of social security schemes and would clog up the general ad-
ministration of justice. These considerations do not apply with anything

24. They have no such entitlement at common law: Local Government Board v.
will
Arliclge f 1A.C. 120 (housing appeal). But they may be entitled to be heard before
91 5]
a person appointed by the Minister to report to him.
25. For example, the Civil Aviation Authority, from which an appeal lies to the
Secretary of State for Trade.
26. See R. B. Stevens and B. S. Yamcy, The Restrictive Practices Court .

27. Except in the Inst resort, wheic a claimant is dissatisfied with the determination
of an inferior tribunal on a matter of law. But cf. the attitude of the Court of Appeal
to ‘appeals’ from supplementary benefit tribunals R. v. Preston Supplementary Benefits
:

Tribunals , ex p. Moore £1975] 1 W.L.R. 624, and below p. 589.

Tribunals and Inquiries 531

 like the same force to the county courts, which are more
accessible and
28
expeditious than some special tribunals and hardly
more expensive.
County courts do, moreover, have jurisdiction in some matters of ad-
ministrative law. Where the county courts have been by-passed and
new
statutory tribunals established instead, the reasons have
generally been the
following:

1. County court judges and registrars are generalists, not specialists. There
is no reason to expect them to be experts in transport licensing or the
rating of property or to be familiar with the problems of the sick
and needy
or to have the time and opportunity to acquire the necessary expertise or
familia-itv. A
special statutory tribunal may include persons
with the
desired initial qualifications and others who will acquire them through
specialization and experience.
2. Courts are formal. The kind of person who is aggrieved by refusal of
a social security benefit or who wants to make a complaint arising out of
the administration of the National Health Service may be overawed by the
atmosphere of a judicial proceeding and reduced to incoherence or silence
if he is precluded by the rules of evidence from telling his story in
his own
way. In some situations justice can be dispensed only in an informal
environment. Special tribunals can be very informal. And none of them
is obliged to follow all the strict rules of evidence and procedure of a court

of law.
3 Tribunals usually take an active part in finding the facts for them-
selves; they may adopt ‘inquisitorial 9 procedures, probing away with
questions, not acting as detached umpires who rely almost entirely on the
material as presented to them by the parties or their advocates. Some of
them example, rent tribunals, valuation courts) regularly conduct site
(for
inspections. And though they must observe those minimum requirements
of procedural fair play called the rules of natural justice, they can draw on
their own expert and acquired knowledge in drawing inferences from the
facts found.

4.Courts are bound by precedent. Tribunals though bound by judicial

down in their own field of the law, and capable of evolving
precedents laid
9
a body of ‘case law themselves, can be more flexible in formulating
standards (for example, what is reasonable under local conditions;

whether premises are educationally suitable) and departing from them

28. On delays in hearings before various kinds of special tribunals, see the Reports
of the Council on Tribunals for 1967 (§§ 73, 74) and 1968 (§§ 19-25). The tempo of
the Foreign Compensation Commission was disturbingly illustrated by the facts
disclosed in Anisminic Ltd v. Foreign Compensation Commission [1969] 2 A.C. 147;
this was aggravated by the further delays interposed by subsequent judicial review.

532 Administrative Law

 when the circumstances of a case warrant relaxation 29 Indeed, one of the
.

more formal special tribunals was warned by the Court of Appeal that it
ought not to adopt a rigid body of case law 30 ,

One of the most significant legal developments in the immediate post-

war period was the replacement of the Workmen’s Compensation Acts
by the national insurance (industrial injuries) scheme 31 Not only was .

private insurance replaced by public social insurance; the tribunals consti-

tuted to administer the new scheme were special tribunals before which
legal representation was at first excluded; such representation is now
allowed. The jurisdiction of county court judges was ousted and the
massive body of case law evolved in the many legal battles fought as far as
the House of Lords was deprived of binding authority. This was a drastic
repudiation of technical legalism in which social justice had too often been
overlooked.

Types of tribunals 32

No attempt will here be made to present a full synopsis. Only a broad

outline under general headings will be offered.

and claims property and land. Appeals against administra-

Fiscal liability ,

tive assessments toincome tax, corporation tax, capital gains tax, capital
transfer tax and development land tax are heard either by special com-
missioners of income tax (who are civil servants) or by general com-
missioners (who are not). Appeals against value added tax assessments by
the Customs and Excise lie to special value added tax tribunals. Persons
aggrieved by rating assessments made by valuation officers (who are civil
servants) may object before a local valuation court, which is composed
largely of unpaid local councillors and magistrates. Appeal lies to the
Lands Tribunal, a body which could easily be styled an administrative
court; its members are professional lawyers and surveyors appointed by
the Lord Chancellor; its procedure is fairly informal but its judgments are
often reported. The jurisdiction of the Tribunal also includes the assess-
ment of compensation for compulsory acquisition of land where this is not*
agreed between the acquiring authority and the property-owner.

29. A point well made by Street, Justice in the Welfare State 2nd edn, pp. 6-9.
30. Merchandise Transport Co. v. British Transport Commission [1962] 2 Q.B. 173
at 186, 192-3.
31. W. A. Robson,Justice and Administrative Law (3rd edn), pp. 209-22.
32. There a good classification and synopsis in J. F. Garner’s Administrative Law
is

(4th edn), chs. 7 and 8. Figures of cases heard by most of the various tribunals are
supplied in an Appendix to the Annual Report of the Council on Tribunals. See
further, D. C. M. Yardley, A Source Book of English Administrative Law (2nd edn),
ch. 6.

Tribunals and Inquiries 533

 Industrial tribunals are possibly the most important group of tribunals
today. They have jurisdiction over a wide range of questions, including
claims to compensation for unfair dismissal, disputes concerning re-
dundancy payments, appeals against assessments to the industrial training
levy and appeals for compensation for loss of public office under statutory
reorganization schemes. In 1974 they were sitting in London and over fifty
33
other centres in England and Wales, and they heard over 13,500 cases.
The Foreign Compensation Commission entertains claims to the award
of compensation out of funds received by the British Government from
foreign governments for the expropriation or destruction of British-owned
property overseas, and allocates the money to successful claimants on
a discretionary basis. The non-statutory Criminal Injuries Compensation
Board makes discretionary awards to claimants who are victims of
criminal violence.
*

The informal rent tribunals and rent assessment committees fix re-
spectively reasonable and fair rents between private landlord and tenants;
the latter are appellate bodies, an initial determination having already been
made by a rent officer. Reasonable rents for council tenants under the
Housing Rents and Subsidies Act 1975 are determined not by tribunals but
by the local authorities themselves. Agricultural land tribunals deal with
disputes between landlords and tenant farmers about notices to quit.

Social welfare. Post-war legislation has substantially enlarged the number

and jurisdiction of such tribunals. Most are appellate bodies hearing
appeals lodged by persons aggrieved by initial administrative decisions;
and in most of the cases before them the monetary sums in issue are small,
though often of major importance to the poor and disabled. There are the
local national insurance tribunals (dealing with claims to unemployment
benefit, sickness benefit, industrial injuries benefit, retirement pensions,
maternity and death grants, family allowances, child benefit and so on),
medical appeal tribunals on industrial injuries claims, and supplementary
34
benefit appeal tribunals. Appeals in respect of disability pensions claimed
by ex-servicemen lie to separate pensions appeal tribunals. From the
*
national insurance and medical appeal tribunals, appeals lie to senior full-
time lawyers, the national insurance commissioners. A complex network of
tribunals (including the Secretary of State for Social Services and the
Health Service Commissioners) exists to hear complaints and allegations
against practitioners in the National Health Service and to entertain
appeals. Persons compulsorily committed to a mental hospital can seek

33. See Report of the Council on Tribunals for 1974-75 (H.C. 679 (1975-76)),
Appendix A.
34. Between them they heard about 72,500 appeals in 1974. For a good critique of
the social security tribunals see Street, op. cit., pp. 10-32.

534 Administrative Law

their release from custody by application to a mental health review tri-

bunal; these tribunals heard over 950 cases in 1974.

Among other tribunals concerned with social welfare in a broad sense
are the industrial tribunals, rent tribunals, rent assessment committees
agricultural land tribunals, the Criminal Injuries Compensation Board,
independent schools tribunals (which determine whether a private school
or its proprietor or any of its teachers ought to be struck off the official

register or disqualified as the case may be) and tribunals exercising roughly
similar functions with regard .to voluntary children’s homes.

Regulatory . Regulation by licensing, normally coupled with powers of

inspection, isa familar feature of public supervision of private activity.
Powers to grant licences will be accompanied by powers to impose con-

ditions, to refuse renewal of a licence, and to revoke a licence when

prescribed violations of the terms of the licence are established; powers
to revoke in the absolute discretion of the licensing authority are rarely
conferred today. Licensing powers may be vested in government Depart-
35
ments, public corporations or local authorities. Aspects of the regulation
of transport communications have been committed, for reasons of practical
convenience, to independent tribunals. For example, applications for
licences to operate commercial air routes are heard by the Civil Aviation
Authority; objectors have a right to be heard in opposition; an appeal lies
to the Secretary of State for Trade. Regulation of carriage of goods and
passengers by road follows a curious pattern. There are area licensing
authorities. Appeal lies from decisions on passenger road services to the
Secretary of State for Transport, on goods carriers’ licences to the
Transport Tribunal. The latter is an anomalous body; till 1969 it also heard
applications for variations of railway passenger charges in the London
transport area. It is a court with j udicial trappings and procedure; its rate-

to the juris-
functions (still exercisable for limited purposes) are successors
by the Railway Rates Tribunal, the antecedents
diction exercised from 1921
a superior
of which can be traced to the Railway and Canal Commission,
court and an arbitral body, set up in 1873.
Among other regulatory bodies are the Comptroller-General of Patents,
the Patents anu
Designs and Trade Marks (from which an appeal lies to
one or two
Registered Designs Appeal Tribunal, composed of either

Rights Tribunal exercising similar func-

superior judges), the Plant Variety
Right Tribunal, the tribunal appointed to consider
tions, the Performing
(Investments) Act 1958 by
alleged violations of the Prevention of Fraud
Tribunal setup
dealers in securities, and the Wireless Telegraphy Appeal

35. Street, op. cit., ch. 4; Glanville Williams (1967) 20 Current Legal Problems 81.

Tribunals and Inquiries 635

 to consider complaints of undue interference with radio broadcasts on the
part of private operators.
Tribunals to consider complaints about the conduct of voluntary schools
and children’s homes are also regulatory bodies. Perhaps one should include
the immigration appellate bodies (over 6500 cases in 1974) in this category
too. The Gaming Board for Great Britain, which decides on the basis of
police reports and other information whether to grant a certificate of con-
sent to gaming-club proprietors, thus enabling them to apply for a local
licence, is a regulatory body which may be regarded as a kind of informal
tribunal.
36
This not a complete list,
is and some classes of tribunals defy classi-
fication.Informal adjudication within government Departments is also of
practical importance. Civil servants in Britain are more accessible to
informal interviews than in many foreign countries.

Franks and after

The Franks Committee found nothing fundamentally wrong with the

system and working of statutory tribunals, and it did not seek to put
tribunals into a strait-jacket. But its bias in favour of judicialization led it
to make a number of recommendations designed to assimilate tribunals
more closely to specialized courts. For example, it deprecated undue
informality, and stressed the need for settled rules of procedure, reasons
for decisions, rights to legal representation, proper channels of appeal and
the removal of any suspicion of political dictation of or influence over
decisions. The procedures of tribunals ought to be characterized by
37
‘openness, fairness and impartiality’. Openness implied not only reasoned
decisions but also public hearings (except where the interests of the public -
for example, in security - or the parties demanded privacy, as in potentially
embarrassing ‘ national assistance appeals and complaints against National
’

Health Service practitioners), with evidence given orally. Fairness de-

manded that the parties knew their rights in advance, had proper notice of
the case they had to meet, an adequate opportunity to put their own case
inperson or through their representatives, and rights to appeal against and
obtain review of decisions. Impartiality required new safeguards for the
appointment and tenure of members; and to preserve the appearance of
impartiality, independent tribunals ought not to sit in departmental
premises. To maintain some degree of coherence and surveillance over the
tribunal system, there should be a standing Council on Tribunals.

36. The latest Annua! Report of the Council on Tribunals gives a full list.

37. Cmnd 217 (1957). §23.

536 Administrative Law

 The Tribunals and Inquiries Act 1958 provided for the establishment
of the Council on Tribunals, to keep under review the constitution and
working of specified tribunals; other tribunals have been added to the list.
The current Act is the Tribunals and Inquiries Act 1971 The Council 38 con-.

sistsof up to fifteen members appointed by the Lord Chancellor and the

Secretary of State for Scotland, and the Parliamentary Commissioner for
Administration ex officio. The chairman is salaried; the other appointed
members receive fees; but the Council is essentially a part-time super-
visory body with a minute official staff. It meets once a month. Members
of the Council and its Scottish Committee attended forty-seven hearings
by tribunals in 1974-5. More specifically, the functions of the Council in
respect of tribunals - it has powers in connection with inquiries too 39 - are
as follows

1. To consider and report on the statutory tribunals under its supervision,

and on such particular matters concerning these and other tribunals as may
be referred to it by the Lord Chancellor and the Secretary of State,
Within the limited scope of its resources, it has attempted to conduct
general reviews of specific classes of tribunals (for example, rent tribunals)
and has reported on special matters such as the power to award costs and
the law of defamation. It organizes conferences with tribunal chairmen.

2. To receive and investigate complaints about tribunals made by members

of the public.
In its first ten years the Council received only 242 complaints relating
to tribunals. This small figure probably indicates a widespread ignorance
of the Council’s very existence or whereabouts rather than a general satis-
faction of consumers with the work of tribunals. The Council has no power
to alter a tribunal’s decisionand in most cases the tribunal would have no
jurisdiction to rescind its own decision even if it wished to do so. How-
ever, individual complaints may lead to further investigations and recom-
mendations for reform. The Council can get to know where the shoe
pinches.

3. To make an annual report to the Lord Chancellor and the Secretary

of State. The Report is laid before Parliament and is now published as a

House of Commons paper. It attracts little public comment but is a very
useful source of information.

38. See Garner [1965] Public Law 321; H. W. R. Wade, Administrative Law (3rd
edn), pp. 266-76; Towards Administrative Justice. Professor Wade was an original
member of the Council. For his more critical reflections, see Bernard Schwartz and
H. W. R. Wade, Legal Control oj Government (1972), pp. 179-80.
39. See pp. 545, 546.

Tribunals and Inquiries 537

4. To be consulted by the responsible Minister before procedural rules for
tribunals and inquiries are made.
This is probably its most important function - one in which the minority
of lawyers on the Council plays a leading role. It has helped to promote
a higher degree of uniformity in tribunal procedures, and in particular to
instil the essentials of judicial fairness into procedural regulations - for

example, adequate notification of rights of appeal, proper notice of hear-

ings and disclosure of the case to be answered ;
rights of cross-examination;
rights to legal representation at oral hearings.
The Council is also consulted by the Department sponsoring legislation
under which a new tribunal is to be constituted or an existing one abolished
or reorganized. It has complained that in these matters it is sometimes
consulted too late for its representations to have any effect, and has urged
that more thought be given to coordinated rationalization of the tribunal
system, involving the amalgamation of some types of tribunals and
40
reallocations of jurisdiction.

5. To make general recommendations to the appropriate Minister as to

the appointment of members of tribunals.

In practice this has not been an important function of the Council. How-
ever, the Franks recommendations have had a significant effect on appoint-
ments and tenure. The chairmen of certain tribunals have to be legally
qualified, and appointed either by the Lord Chancellor or by the Minister
generally concerned with the area of administration in question from a
panel maintained by the Lord Chancellor. Members of most tribunals can-
not be removed except with the Lord Chancellor’s concurrence; 41 they
may, however, be refused reappointment after their term of office has
expired.
Tribunals are not cast in a common mould, but some general points are
important:
42
(i) Most tribunals are not composed of officials, though there are some
exceptions - for example, Ministry inspectors deciding planning appeals,

40. Annual Report for 1969-70 (H.C. 72 0970-71)), pp. 10-11, 29-32; and for
1973-74 (H.C. 289 (1974-75)), pp. 4-5, 6, 18-19.
41. See Tribunals and Inquiries Act 1971, ss. 5, 7-9. For the Franks recommenda-
tions on these matters, see Cmnd 218, ch. 5. In 1969, 2281 members of tribunals (out
of about 21,000) had been appointed or recommended by the Lord Chancellor
(H.C. 72 (1970-71), p. 12).
42. There is good survey of the composition of various tribunals, and the methods
by which their members are appointed in practice and the classes of persons from whom
they are drawn, by McCorquodale in [1962] Public Law 2 98. See further, Cavanagh
and Newton (1970) 48 Public Administration 449, (1971) 49 Public Administration 197;
Wraith and Hutchesson, Administrative Tribunals (19 73) ; Bell, Social Security Tribunals
(1976).

538 Administrative Law

special commissioners of income tax, the Comptroller-General of Patents
Designs and Trade Marks; these officers nevertheless act independently/
(ii) A fairly typical tribunal is composed of a legally qualified chairman,

appointed by one of the procedures indicated above,* and two lay members,
one of whom will perhaps be an employer and another a trade union
official or both may be independent specialists or local worthies.
;

(iii) They are bound by regulations made by the Minister, but only in
highly exceptional circumstances defined by legislation will the Minister
be legally entitled to give them specific directions for the determination
of a particular case.
(iv) For a variety of reasons the position of a legally qualified chairman 43
may be of crucial importance. The legislation which a tribunal has to
interpret and apply may be just as complicated as law in the courts.
Although the parties will nearly always be entitled to legal representation 44 ,

they will seldom be so represented before tribunals like social security

tribunals dealing with small matters. Unfortunately, the legal aid and
advice scheme has not been applied to proceedings before tribunals except
the Lands Tribunal, the Commons Commissioners and the Employment
Appeal Tribunal 45 If one party is legally represented, the chairman will
.

have to do his best to help the unrepresented party put his case without
shedding his own impartiality as a fact-finder and adjudicator. Obviously
this is a difficult task.

Before some tribunals legal representation, may, however, be a mixed

blessing to a party. Clearly, such representation is important if a party is
accused of culpability or if his vital interests are in serious jeopardy. But
advocates appearing before tribunals can also sow confusion and protract
the proceedings unnecessarily by reading documents at length, conducting
long examinations and cross-examinations of witnesses, making elaborate
submissions and generally frustrating the object of an informal hearing.
Few practising lawyers appear regularly before the minor tribunals, and
unfamiliarity with the atmosphere can be a serious disadvantage. There is

43. Full-time chairmen were appointed for industrial tribunals following the heavy

increase in their work-load after 1971.

44. The Franks Report (§ 87) recommended that the right to legal representation be
curtailed only in the most exceptional circumstances. In 1958 a right to legal repre-
sentation before industrial injuries tribunals was conferred by statutory instrument.
There remain special cases - for example, a police officer on a disciplinary charge can
be represented only by another officer. See Maynard v. Osmond [1976] 3 W.L.R.,

711, C. A.
45. The Lord Chancellor’s Legal Aid Advisory Committee has recommended that
legal aid be extended to all tribunals at present within the supervision of the Council
on Tribunals in which representation is permitted, and to the Patents and Registered
Designs Appeal Tribunal: Twenty-fourth Annual Report, H.C. 20 (1974-75).

Tribunals and Inquiries 539

a real dilemma: in certain cases it is very desirable for all interested parties

to have the right kind of legal representation; that kind of representation

may simply not be available, and the chairman has to do his best to supply
the omission or remedy the deficiency.

is con-
6. The last function of the Council on Tribunals in this context
cerned with reasons for decisions. Under section 12 of the Tribunals and
Inquiries Act 1971, tribunals under the superintendence of the Council are
require^,when requested, to supply oral or written reasons for their
when giving or notifying their decision, unless exempted by order
decisions
made by the Lord Chancellor after consultation with the Council. Only
one class of tribunal has been accorded exemption.
46
The general statutory duty to give reasons
1
is, however, subject to

qualifications. The tribunals in question are not obliged to volunteer

reasons or to inform the parties of their right to request them. Some
tribunals interpret their statutory duty literally and, in the absence of
a
47
request, simply do not give reasons. Moreover, the duty to give reasons
does pot import a duty to summarize the evidence or state findings of fact.
Reasons may properly be withheld on grounds of national security, or if
decision
they are asked for by somebody not primarily concerned with the
and it would be contrary to the interest of any of the parties to supply
them. 48

Appeal and review

last resort
There is no common appellate structure. From most tribunals of
49
there is no
an appeal lies to the superior courts on questions of law, but
appeal from determinations by, for example, the national insurance
such
commissioners or the immigration appeal tribunal. On
questions of fact

and discretion the pattern is irregular. Appeal may lie to a superior tri-

bunal or to a Minister, or there may be no appeal

on the merits at all;
of rent tribunals,
there is no such appeal, for instance, from
decisions
tribunals or the Foreign Compensation Commission.
mental health review
review may be exercisable although no appeal is provided by
Judicial
addition to appellate review. A determination by
a tribunal
statute or in
made without jurisdiction or in breach of the rules
may be quashed if it is
an error of law on the face of the record
‘
.
of natural justice, or if it exhibits

tribunals were already under a duty to give

reasons for decisions and they
.46. Some
exempted from this duty. The duty was not subject to all the qualifications
cannot be
mentioned in the text below.
47. See Street, op. cit., pp. 67-9.
48. 1971 Act, s. 32(2).
49. See p. 521, and Tribunals and Inquiries Act 1971, s. 13.

540 Administrative Law

 A tribunal may be restrained from exceeding its jurisdiction or commanded

to hear a case within its jurisdiction; it can also be ordered to perform

a duty to give reasons for its decision. These matters will be discussed in
the next chapter.

Inquiries and land use

The Franks Committee emphasized the need for openness and fairness in
inquiries held on behalf of a Minister, but it recognized that a procedure
culminating in a discretionary decision by a Minister responsible for
national policy could not be expected to exhibit the same degree of
impartiality as proceedings before an independent tribunal. 50
The difference is best illustrated by situations where the purpose of the
inquiry is to investigate, for the information of the Minister, objections
to the Minister’s own proposals. 51 The New Towns Act 1946 provided for
the establishment of new towns and industry from
to attract population
the metropolis. Before the bill had been introduced, the Minister had
already provisionally decided, as a matter of policy, to designate Stevenage
as the site of a new town. While the bill was befoYe Parliament, he im-
prudently made a speech in Stevenage, proclaiming that he intended to
carry out a daring exercise in town planning there, and affirming (amid
hostile interruptions ‘Gestapo’
. . . .) that the project would go forward
. .

because it had to go forward. Subsequently a draft order was made,

designating Stevenage; objections were lodged; a public local inquiry into
the objections was held by a Ministry inspector; the Minister, having
received the report on the inquiry and considered the objections, finally
made the order. In Franklin v. Minister of Town and Country Planning 52
objectors challenged the validity of the order in the courts, claiming that
the Minister had failed to act judicially. He had manifested bias or a real
likelihood of bias in favour of his proposal from the outset; and the fact
that he had made the final order while important technical problems (water
supply and sewage disposal) remained unsolved showed that his bias had
continued to the end. The House of Lords held that the standard of im-
partiality imposed on an independent tribunal was inapplicable to this type
of situation; the Minister’s role made it inevitable that he would incline
in favour of hisown scheme. The only duties cast upon him were to cause

50. Cmnd 218 (1957), §25.

51. On the difficulty in applying judicial standards to procedures involving public
inquiries held as part of a process in arriving at a discretionary decision, see Wedrtes-
bury Corporation v. Ministry of Housing and Local Government (No. 2) [1966] 2 Q.B.

275 and Essex C.C. v. Ministry of Housing and Local Government (1967) 66 L.G.R. 23.
;

52. [1948] A.C. 87.

Tribunals and Inquiries 541

 a properly conducted inquiry to be held and to consider the objections and
the report fairly, with a mind not closed to argument. The Minister’s
functions were ‘purely administrative’.
The decision in this case was sensible, though the term ‘purely admin-
istrative’ may have been unfortunate. A duty to act fairly may imply a duty
to behave like an adjudicator for certain purposes - for example, in ensuring
that everyone directly concerned is adequately informed of his rights,
knows the case he has to meet and has a proper chance to put his case, and
that reasons are given for decisions 53
.

A more typical situation in administrative law is where a Minister, X,

has to decide a dispute between Y, a local authority, and Z, a property-
owner 54 This ‘triangular’ situation may arise where Y makes an order for
.

the compulsory purchase of Z’s property and Z objects; or where Z applies

to Y
for permission to make a material change in the use of his land or
premises (planning permission), Y
refuses, or consents subject to condi-
tions, and Z appeals to the Minister, X, against the refusal or the
conditions. In certain respects the Minister resembles an adjudicator
determining a lis inter partes a dispute between parties. Long before the
,

Franks Committee bad ever been thought of, the courts had recognized
that certain implied duties ought to be cast on the Minister when deciding
whether or not to confirm a compulsory purchase order initiated by a local
authority in so far as his role was analogous to the judicial. They divided
his functions into three stages. First, before objections were lodged, he had
no duty to ‘act judicially’; thus, if relevant communications were made to
him by the local authority, he had no obligation to divulge them to the
objectors; he was acting in an ‘administrative’ capacity 55 Secondly, after .

objections had been lodged and up to the time of the final decision, he had
to ‘act judicially’ in accordance with the minimum standards of natural
justice; hence, the inspector conducting the public local inquiry had to
behave impartially, and the Minister could not communicate with one
party behind the other’s back (for example, by viewing the site, through
-his officials, in company with representatives of the local authority, without
giving the objectors the opportunity to be present) on evidential matters
56
raised at the inquiry . There has been a recent increase injudicial activism

53. See now Compulsory Purchase by Ministers (Inquiries Procedure) Rules 1967
(S.I. 1967, No. 720).
Z may also be a public authority.
54.
Johnson (B.) <& Co. ( Builders ) Ltd v. Minister of Health ri947] 2 All E.R. 395.
55.
The leading judgment by LoFd Greene M.R. contains the fullest review of the case
law up to that time.
56. Errington v. Minister of Health [1935] 1 K.B. 249 (a slum clearance case; the same
principles applied). For an acute analysis see Griffith and Street, Principles of Adminis-
trative Law (5th edn), pp. 171-5.

542 Administrative Law

 in an attempt to ensure fairness towards objectors. It
has been said that
conduct by the Minister or the inspector likely to prejudice the
objector is
a sufficient ground to quash the decision even though no actual
57
prejudice
is proved .Thirdly, in making his final decisiorrthe Minister
re-assumed
his ‘administrative’ capacity. All that this meant was
that the expediency
*
or reasonableness of the decision could not be canvassed in the
courts
These judge-made safeguards did not go very far. And the
House of
Lords had held that even while the Minister was acting ‘judicially’,
he did
not have to disclose the inspector’s report 58 The Franks .
Committee
recommended disclosure of the fact-finding sections of inspectors’
reports
before they were submitted to the Minister, so as to enable the
parties to
propose corrections of fact; and full disclosure of the report with me
Minister’s reasoned letter of decision 59
. The recommendation for dis-
closure prior to the decision has not been implemented by legislation
be-
cause it would lead to too much delay in decision-making,
but subsequent
disclosure must now be made on request. Most of the other
Franks
recommendations have been implemented. For instance, an acquiring
authority must give advance particulars of its case; if a Department
has
expressed a view in support of the local authority’s proposal or decision
and this fact is stated in the local authority’s submissions, a representative
of the Department must be available at the inquiry to give evidence; there
are statutory codes for the conduct of inquiries, specifying who has aright
to be heard and who may be heard, embodying rules of procedure analo-
gous to those for a judicial-type proceeding, and dealing with the procedure
60
before and after the hearing .

All this seemed eminently reasonable; and it was. But in practice

judicialization tended to slow down the process of making decisions.
Inspectors’ reports, for example, and reasoned letters of decision setting

57. Hibernian Property Co. Ltd Secretary of State for the Environment (1973) 72
v.
L.G.R. 350 (inquiry to determine whether to uphold compulsory purchase order;
inspector sought views of occupants without warning objectors). See also Fairmount
Investments Ltd v. Secretary of State for the Environment [1976J 2 All E.R. 865, and
contrast Lake District Special Planning Board v. Secretary of State for the Environment ,

(1975) 119 Solicitors* Journal 187.

58. Local Government Board v. Arlidge [1915] A.C. 120.
59. Cmnd 218 (1957) §§ 343-5. Partial disclosure of reports prior to the decision is
the practice followed in Scotland. The rules governing reasoned decisions by the
tribunals named in the Tribunals and Inquiries Act were applied to decisions in
pursuance of mandatory statutory inquiries (1971 Act, ss. 12(1), 19(1)) and to a number
of voluntary inquiries held on behalf of a Minister.
60. See, for example, Compulsory Purchase by Local Authorities (Inquiry Pro-
cedure) Rules 1962 (S.I. 1962, No. 1425), and S.I. 1976, No. 746; and see S.I. 1967,
No. 720 (note 53); Town and Planning (Inquiries Proccdute) Rules 1974 (S.I. 1974,
No. 419) and cf. S.I. 1974, No. 420 (procedure on planning appeals where the inspector
;

makes the decision).

Tribunals and Inquiries 543

out the inspectors’ main findings had to be carefully
composed; otherwise
the decisions might be struck down comply
in the courts for failure to
with the requirements of the legislation. 61 This could be quite serious in
the case of compulsory purchase orders, because judicial review meant
uncertainty, and the work of building roads, schools or houses could not
safely be begun while judicial proceedings were pending (though they had
to be instituted within a few weeks of the confirmation of the order). For
a different reason, delay was serious in the context of planning appeals;
they were very numerous, and private development of property was held
up while a backlog piled up in the Ministry. In 1967 it was taking an
average of nine months to determine those planning appeals where the
62
appellant had asked for an oral hearing. One answer to the latter prob-
lem w^$ decentralization of decision-making; hence power to decide minor
appeals has been delegated to inspectors, who do not have to make a full-
scale report but can simply issue a short letter of decision containing
63
reasons. Another device was to encourage appellants to agree to having
the matter decided by written representations coupled with an unaccom-
panied site inspection. There have been other reforms in planning pro-
64
cedure. Instead of having area planning policy settled by a development
plan tp which hundreds of objections could be entertained at a massive
public inquiry, the larger planning authorities now prepare outline struc-
ture plans subject to ministerial approval. The Secretary of State can
decide which aspects of the plan shall be considered at ‘an examination in
public’ and whom to invite to be heard and he has a free discretion whom
;

65
to consult when he considering the plan.
is

In some respects implementation of the Franks recommendations did

not go far enough. For example, the Government refused to carry out the
proposals that there should be an express duty to acquaint the parties with
decision.
relevant statements of policy and changes in policy prior to the

61. See Givaudart & Co. v. Minister of Housing and Local Government [19671 1
W.L.R. 250 (decision quashed because the reasons given in the letter of decision, read
together with extracts from the inspector’s report, were
unintelligible).

62. Cmnd 3333 (1967), p. 7. In 1976 the average times

taken for planning appeals

in England decided after a local inquiry

were 56 weeks for appeals decided by the
Secretary of State and 32 weeks for those decided by
inspectors.

63. See notes 12 and 60.

64. Richard Buxton, Local Government (2nd edn), ch. 7.

65. Town and Country Planning (Amendment)
Act 1972, s. 3(1) modifying section
of the Town and Country Planning Act 1911. Local plans do not necessarily have to be
9
Secretary of State at all (1971 Act, ss. 1 1, 14), unless the Secretary of
confirmed by the
State so directs, in which case he is free to consult
with any interested party without
ton's case, note 56. See also
having to go back to the others (1972 Act, s. 3(2)); cf. Erring
The 1971 Act provides for local publicity and participation in the
S.1. 1972, No. 1154.
structure and local plans (ss. 8, 12). See also pp.
400-401.
preparation of

544 Administrative Law

Again, at first nothing was done to implement recommendations about re-
opening the inquiry where the Minister proposed to disagree with the
inspector’s recommendations. The latter issue came to a head in the
Saffron Walden chalkpit case 66 A company sought permission to quarry
.

chalk in a pit. Neighbouring farmers claimed that these operations would

seriously damage their land and livestock. The local planning authority
refused the application for planning permission; the company appealed,
and an inspector, having conducted a local inquiry on behalf of the
Minister and heard expert evidence, recommended that the appeal be dis-
missed. The Minister overruled the inspector and allowed the appeal,
having consulted other experts. Naturally this created a bad impression in
so far as an open inquiry had been followed first by closed consultations
behind the back of the parties and then by a decision overruling the weignt
of the body of expert opinion already tested by public interrogation. A
neighbouring landowner, Major Buxton, challenged the Minister’s decision
in the High Court; he failed on the technical ground that he was not a
person aggrieved by the decision , 67 though certainly he thought he had
a legitimate grievance. The Council on Tribunals took up the issue with
the Lord Chancellor and the Minister. Eventually new rules were laid down
to be applied in the future. Major Buxton had lost his private battle, but he
triumphed in defeat. Now, if the Minister is minded to disagree with an
inspector’s recommendation on a planning appeal, he must normally
notify the applicant, the local planning authority, and any other person
with a direct interest in the land who gave evidence at the inquiry, and
must give them an opportunity of making fresh representations to him 68 .

If, moreover, the reason for the proposed disagreement is that the Minister

has received new evidence, including expert opinion on a matter of

fact, or has considered any new issue of fact (not being a new issue of
government policy) which was not raised at the inquiry, he must be pre-
pared to re-open the inquiry if requested to do so 69 This change could,
.

of course, slow down decision-making still further. In practice it has

66. See J. A. G. Griffith and H. Street, A Casebook of Administrative Law , pp.

142-92.
67. Buxton v. Minister of Housing and Local Government [1961] 1 Q.B. 278 (B was
only a ‘third party’ in the appeal to the Minister).
68. If the Minister simply disagrees with the inspector’s views about what planning
policy is, or how that policy should be applied to the facts found at an inquiry, or on
a matter of aesthetic taste, this decision is final: Luke of Pavenham v. Minister of
Housing and Local Government [1968] 1 Q.B. 172; Vale Estates (Acton) Ltd v. Secretary
of State for the Environment (1970) 69 L.G.R. 543. If there is disagreement between the
Minister and inspector on a material finding of fact , an opportunity to make further
written representations must be afforded.
69. See, for example, S.I. 1974, No. 420, r. 12,

Tribunals and Inquiries 545

not been particularly important
70
A White Paper stated that the Minister
.

71
agreed with thirty-nine out of forty recommendations by inspectors .

Not many people had suggested that under the old procedure decisions
were in fact unfair. Now they look fairer. Furthermore, the liberalization
in the procedure of inquiries, in particular the discretion given to the in-
spector to hear anyone with a genuine grievance, has led to a corresponding
of who is entitled to
liberalization in the attitude of the courts to the issue
challenge a decision before them. Any person appearing at the inquiry,

whether by right or at the discretion of the inspector, may now seek a final
72
ruling from the courts on the legality of the decision .

Scrutiny of inquiries

The functions of the Council on Tribunals are of some importance. It con-

siders and reports on such matters as the Lord Chancellor or the Secretary
of State may refer to it; on its own initiative it may also raise particular
questions affecting inquiries; has to be consulted before procedural rules
it

are made for inquiries; it receives complaints from members of the public.
It is not entrusted with the task of keeping the general working of statutory

inquiries under review, nor is it empowered to make recommendations as

to the kind of person who should be appointed to conduct them; in these
respects its functions are narrower than its functions relating to tribunals,
but the impediment is not a serious one.
Its tendency to emphasize the need for procedural safeguards, par-
73
ticularly after the termination of an inquiry , and its criticisms of the
74
.procedure adopted in two controversial cases brought it into inter-
,

mittent conflict with Ministers of Housing and Local Government; the

Lord Chancellor, more sympathetic to its objectives, was at times hard
pressed to maintain the principle of collective ministerial responsibility.

70. It has led to several unsuccessful applications to the courts to quash Ministers*
decisions for refusing to re-open an inquiry; see Luke's and Vale's cases; Continental
Sprays Ltd v. Minister of Housing and Local Government (1968) 67 L.G.R. 147, 19
P. &
C.R. 774; Boyer ( William ) & Sons Ltd v. Minister of Housing and Local Govern-
ment (1968) 67 L.G.R. 374; 20 P. & C.R. 176 (complaints of inadequate findings of fact
in inspectors’ reports).
71. Cmnd 3333 (1967), §§ 33, 34.
of State for the Environment (1973) 72 L.G.R. 380 and
72. See Turner v. Secretary
S.I. 1974, No. 420, r. 7. (What would be the position of a person with a substantial
grievance who had not appeared at the inquiry ? Would the Buxton decision still bar
him from the courts ?)
73. It was instrumental in securing a more satisfactory final draft of the procedural
rules for planning appeals and compulsory purchase order inquiries in 1962.
74. The Saffron Walden Chalkpit case (p. 545) and the Packington Estate case [1966]
Public Law 1 ; Annual Report of the Council on Tribunals for 1965, §§ 77-82.

646 Administrative Law

Procedures involving inquiries held on behalf of Ministers tend
to evoke
stronger feelings than matters affecting tribunals, not only
among local
inhabitants but also in the Departments concerned. The potential
conflict
between the needs for affording fair play to individuals and for
speedy
implementation of policy decisions in compulsory purchase cases is
apt to
develop into a heated battle in which an independent scrutineer can
hardly
failto earn obloquy as a busybody, a nonentity or a supposed
partisan.
Relations between the Council and the Departments are not
generally
hostile,and Departments voluntarily consult the Council when introducing
bills providing for new inquiry procedures. But when conflicts
arise the
Council is handicapped by its lack of a political power-base.
The Parliamentary Commissioner for Administration 75 can also enter-
tain complaints about injustice caused by maladministration in
connection
with procedures involving inquiries held on behalf of a Minister;
and
because of the jurisdictional overlap he has been made an ex officio mem-
ber of the Council. However, he cannot investigate a complaint unless
it
is addressed to him through a member of Parliament 76
He has no power
.

to investigate complaints of decisions by tribunals or by Ministers acting

in a judicial capacity , 77 but may, in his discretion, investigate a
complaint
of departmental ‘administrative’ maladministration in presenting or
78
otherwise handling the matter .

75. See ch. 29.

76. For the procedure adopted for passing on to him complaints addressed
to the
Council and vice versa, see Annual Report of the Council for 1968 (H.C. 272 (1968-69)),

77. Parliamentary Commissioner Act 1967, s. 5(2). He is concerned only

with the
‘administrative’ functions of Ministers and officials. Determination of a planning
appeal or confirmation of a compulsory purchase order is to be regarded as ‘adminis-
trative* for this purpose.
78. See David Foulkes (1971) 34 Mod. L. Rev. 377.

Tribunals and Inquiries 547

Chapter 26
Judicial Review of
Administrative Action:
Principles

This chapter is about the general principles applied by the superior courts
in reviewing the validity or legality of the acts, decisions and omissions of
administrative authorities, including statutory tribunals. In the chapters
on delegated legislation and local authorities we have already been intro-
duced to this subject. 1 In chapter 27 we shall consider some special features
of judicial remedies in administrative law. In chapter 28 we shall have
something to say about actions for damages for civil wrongs committed
by public authorities, particularly the Crown.
Four preliminary words of warning are needed. First, this is an ex-
tremely complex subject with intricate ramifications. 2 We cannot cover
every aspect, even in outline. And some matters will have to be over-
simplified if they are to be explained at all. They may still seem rather
mysterious. Secondly, a grasp of general principles is obviously important.
But to apply these principles to concrete situations demands flexibility and
subtlety. In approaching the solution to a particular case, the crucial
questions will often be: What are the context and purpose of the legislation
in question ? What significance is to be attributed to the language in which
a grant of statutory power is worded? To a
large extent judicial review of
administrative action a specialized branch of statutory interpretation.
is

Thirdly, administrative law is not very coherent. For example, the laws
of town and country planning, social security and immigration have some
points of contact but far more points of dissimilarity. Precedents laid down
in may be treated by a court as irrelevant if cited as
one area of the law
authorities in another area. One needs to be an expert forecaster to be able
to predict how a court will react to such citations in any given case.
Fourthly, from time to time the courts shift their position, and they are apt
not to be entirely consistent in their attitudes.
Hence, if one is asked what legal principles a public authority is obliged
to observe when exercising a specific discretionary power, one’s answer

Chs. 15 and 18.

1.

See dc Smith, Judicial Review of Administrative Action (3rd edn); H.

2. W. R. Wade,
Administrative Law (3rd edn).

548 Administrative Law

may often have to be hedged about by words like ‘probably’ and
‘perhaps’. The of the law is elusive and fluid.
state
One further point must always be borne in mind - a point more obvious
to the uninstructed layman than to a law student grappling with an in-
tractable body of legal material. In deciding individual cases the courts will
try to do justice by balancing the needs of administration and the public
interest against the claims of the private citizen to fair treatment. Some
judges are prepared to ‘bend’ the law by manipulating precedent and
principle in order to achieve and vindicate what appears to them a just
solution to the case in hand. Judges exercise more freedom of manoeuvre
than in most of the other branches of English law.

Going to court

may be invoked for a wide range

Judicial review of administrative action
of purposes by a person claiming to be aggrieved.

1. To obtain damages or another private law remedy (for example, an

injunction) for a civil wrong, such as a breach of contract or a tort.

2. To have an order, act or decision of a public body quashed or declared-

invalid on the ground that it is ultra vires or outside jurisdiction. This
purpose may be achieved by means of an appeal (if one is provided by
statute), ora statutory application to quash (for example, a decision to
confirm a compulsory purchase order), or an application to the Divisional
Court of the Queen’s Bench Division for an order of certiorari to quash
a decision, or an action claiming a declaration that the act, order or
decision is invalid. Already one sees that substantive administrative law is

interwoven with the law of remedies.

3. To procure, on appeal, the .reversal or variation of an order or de-

termination for error of law. This overlaps with (2); we shall try to explain
the difference between invalidity and error shortly.
4.To restrain the performance or continuance of unlawful action. This
may be achieved by an application for an order of prohibition, or pro-
ceedings for an injunction or a declaration, or a statutory application to
restrain (for example) the making of an invalid compulsory purchase order.
5. To obtain release from unlawful detention. The appropriate remedy will
be either appeal or an application for habeas corpus.
6. To secure an authoritative statement of the law governing a specific legal
dispute by means of a binding declaration awarded by the courts. Conse-
quential relief (for example, damages) does not have to be claimable as
well.

Judicial Review of Administrative Action : Principles 549

7. To secure the performance of a public duty, (for example, to make
reimbursement; to exercise a discretion according to law; to hear an
application or appeal within a tribunal’s jurisdiction). Normally the judicial
remedy for a wrongful omission will be an order of mandamus; a declara-
tion, or even a mandatory injunction, are possible remedies. Sometimes
non-performance of a public duty will give rise to an action for damages.
8. defend oneself in proceedings which rely on the validity of an
To
administrative act or order. If, for example, one is prosecuted for breach

of a by-law, one can set up the defence that the by-law is ultra vires .

Finally, we should note that public authorities may appear in the courts
for other reasons. For instance, many enforcement powers vested in public
authorities (for example, to abate nuisances) are exercisable only with
leave of a court or magistrate; and in most of these situations the prospec-
tive victim can be heard on his own behalf. Again, sometimes criminal
proceedings can be brought against public authorities (for example, for
breaches of the Public Health Acts).

Ultra vires and excess of jurisdiction

Vires

.The ordinary courts have long exercised the important constitutional

function of containing both the Executive and inferior tribunals within
the limits of their authority. It was firmly established in the seventeenth
century that the Crown could not set itself above the law by a bare assertion
of prerogative. 3 Clearly, then, if the Crown exceeded statutory powers
vested in it, the courts could pronounce its acts invalid; and similarly if
Crown servants or local authorities proceeded to exceed their powers, the
courts had a like authority provided that the matter was properly brought
before them in a legal controversy. Nowadays we say that public authori-
tiesand officials must act intra vires (within their powers). They can only
do what the law permits them to do; 4 they cannot do what the law forbids
them to do. As we have noted, there is a view that public authorities
established otherwise than under statute (for example, by royal charter)
may be partly exempt from the ultra vires doctrine in that their powers
may not be wholly confined to those bestowed on them by legislation. 5
Subject to this limited exception, the general principle is clear. Naturally,
problems - often difficult problems - arise in its application. Acts reason-
ably incidental to powers expressly granted may be construed as falling
;
See pp. 69 and 1 1 3.
3.
4. M’Ara v. Edinburgh Magistrates 1913 S.C. 1059 (proclamation prohibiting public
meetings nugatory in absence of statutory basis).
5. Though if they are accorded statutory powers they must act within the scope
of that authority.

550 'Administrative Law

within the grant of power. The Fulham 6 and Smethwick1 cases, one falling
on each side of the line, illustrate the point.As we have seen, the scope of
the incidental powers of the new local authorities has been slightly
8
enlarged .

Seldom are cases before the courts as clear-cut as these. Sometimes the
question is what effect should be given to an order th'at is partly ultra vires
but partly intra vires - for instance, where a public body issues a licence
or permit to which invalid conditions are annexed, can the courts sever the
bad from the good, perhaps leaving the plaintiff with an unconditional
grant ? This might defeat the intention of the licensing body. In this area
the courts have trodden warily, but they are unlikely to sever invalid con-
ditions unless they are clearly irrelevant to the subject-matter of the
permit .
9
Then there are awkward problems connected with the idea of
estoppel; nobody can be quite sure of some of the answers 10 . Special

difficulties arise not whether a public authority has

where the question is

acted ultra vires in a matter of substance but whether it has acted ultra vires
in a matter of procedure or form. On these matters there is a vast body of
case law. Suppose that a statutory instrument which should have been laid
before Parliament has not been so laid; or that a by-law has not been
published before it is confirmed by the Minister; or that somebody should
have been consulted or notified before an administrative order or notice
was issued; or that the order or notice was issued according to the proper
procedure but on the wrong date, or omitted words that it ought to have
contained. Are these administrative acts valid or invalid? One simply can-
not answer these questions in general terms. As we have already men-
tioned 11 the courts classify procedural and formal requirements as
,

‘mandatory’ or ‘directory’. If a mandatory requirement is not observed,

an administrative act is either absolutely void, or voidable when it is
challenged in a court. If the requirement is merely directory, substantial

compliance will be enough to validate the act; and in some cases even total
non-compliance will not affect the validity of the action taken.
This does not help us to predict when the courts will hold a procedural
or formal requirement to be mandatory or directory Perhaps we can make .

6. Att.-Gen. v. Fulham Corporation [1921] 1 Ch. 440.

7. Att.-Gen. v. Smethwick Corporation [1932] 1 Ch. 562.
8. pp. 392-3. ^ .

9. See Hall Shoreham-by-Sea U.D.C. [1964] 1 W.L.R. 240 (void condition

& Co. v.
followed in R v.
not severable, and grant of planning permission held invalid);
.

Hillingdon London Borough Council ex p. Royco Homes

,
Ltd [1974] Q.B. 720. cf.
approaches
Kingsway Investments (Kent) Ltd. v. Kent C.C. [1971] A.C. 72 for divergent
by the Law Lords.
10. See pp. 387-90, 394-6, 600, note 10.

11. pp. 337-8, 388-9, above.

Judicial Review of Administrative Action : Principles 551

 two general comments. First, if the practical
consequences of holding
compliance to be mandatory would be very serious,
a requirement may be
held to tos merely directory. An extreme example
comes from New
Zealand. The Governor-General issued his warrant for the
holding of a
General Election at a later date than the law prescribed.
Somebody con-
tended that the ensuing General Election was, therefore,
null and void The
courts (not surprisingly) held that the rules about
time were only directory
If they had held otherwise, there would have been
a legal vacuum which
nobody within New Zealand could have filled, forno Parliament could
lawfully have been summoned; the administration
of the country might
have ground to a halt 12 Secondly, if the impact of the
.
administrative act
on private rights
important, an ostensibly small deviation
is
from the
statutory requirements may be held to render the act
invalid. For instance
if an acquiring authority fails to carry out its statutory duty to notify
specified classes of persons of a compulsory purchase order (thus
impeding
their opportunity to lodge objections ) 13 or if the Minister fails
to give
adequate, proper, clear and intelligible reasons for his
decision, a person
aggrieved may have the order quashed on the ground
that he has been
substantially prejudicedby the non-compliance 14 even though the merits ,

of the order would otherwise be unassailable. But courts

sometimes take
a very strict view of procedural or formal requirements, treating
minor
deviations as invalidating the action although nobody appears
to have
suffered detriment as a result of non-compliance. They will try
to 'deduce
the unexpressed (and probably non-existent) intention of Parliament
from
the wording and general purport of the Act 15 .

12. Simpson Att.-Gen. [1955] N.Z.L.R. 271. The United Kingdom Parliament,
v.
under section 4 of the Statute of Westminster 1931, can legislate for New Zealand
with New Zealand’s request and consent, but under New Zealand law the request
and consent can come only from the New Zealand Parliament.
13. See also Lee v. Department of Education and Science (1967) 66 L.G.R. 21
1 (failure
to afTord adequate time for persons aggrieved by proposed administrative order to
make representations); Agricultural etc. Training Board v. Kent [1970] 2 Q.B. 18
(failure to notify address for lodging appeal).
14. As in Givaudan & Co. v. Minister of Housing and Local Government
[1967] 1
W.L.R. 250 and the French-Kier Ltd case, The Times 25 October 1976. See also Re
,

Poyser & Mills Arbitration [1964] 2 Q.B, 467 and H. J. Bicock, Administrative
*

Justice pp. 87-97, on duties to give reasons. See further Akehurst

,
(1970J 33 Mod.
L. Rev. 154 and pp. 540, 543, above. Where there is a special statutory procedure to
challenge decisions on planning appeals, compulsory purchase orders and the like, the
Acts provide that a person aggrieved by non-compliance with a procedural or formal
requirement must show that he has been ‘substantially prejudiced’ thereby. For
an example of a trivial defect not giving rise, in the opinion of the Court of Appeal,
to substantial prejudice, see Gordondale Investments Ltd v. Secretary of State for the
Environment (1971) 70 L.G.R. 158. And see Coney v. Choyce [1975] 1 W.L.R. 422.
15. As in R. v. Pontypool Gaming Licensing Committee [1970] 1 W.L.R. 1299 (over-
stepping an unimportant time limit). See de Smith, op. cit. (3rd edn), pp. 122-6.

552 Administrative Law

 Substantive ultra vires is a generic concept, a parent of other heads of
invalidity.A body vested with discretionary powers acts ultra vires if it acts
in bad faith or for a wrong purpose, or (in some situations) with gross
unreasonableness, or if it fails to have regard to relevant considerations or
is materially influenced by irrelevant considerations. By-laws may be held
to be ultra vires if they are manifestly unreasonable (For example, because
they are unfairly discriminatory) or directed to an unauthorized purpose,
or repugnant to the general lav/ of the land, or so uncertain that nobody
can be sure what it is that they are prohibiting. But the term ultra vires can
also be interpreted in a narrow sense, as meaning excess of powers but not
the various forms of abuse of powers. In Smith v. East Elloe R.D.C. (1950^
the validity of a compulsory purchase order confirmed by a Minister could
be challenged by the property owner within six weeks on the ground that
authorization was ‘not empowered to be granted’ by the enabling Act.
its

After the six weeks had expired, it could not be questioned ‘in any legal
proceedings whatsoever’. The property owner brought an action a long
time after the event, claiming a declaration that the order was void because
it had been fraudulently procured. The House of Lords held, by a majority,

that the plain words of the Act precluded judicial review after the expiry
of the six weeks’ period; and some of their Lordships were also of the
opinion that even within the six weeks’ period the order could be challenged
only for ultra vires in the strictest sense so that allegations of fraud or bad
faith could not be raised at all under the statutory procedure. The latter
view is unjustifiably narrow and would probably not be followed today.
The East Elloe case also raises the question how the jurisdiction of the
courts to determine questions of vires can be excluded. Three methods may
be adopted. The first method (which will be referred to in the next chapter)
is to vest exclusive jurisdiction in the first instance in a body other than the

superior courts. This does not, however, preclude the courts from sub-
sequently determining whether that other body reached its decision on the
basis of proper legal principles. The second is a generally worded exclu-
sionary clause to the effect that the order, when made, shall be ‘final’, or
‘conclusive’, or ‘shall have effect as if enacted in this Act’, or shall not be
questioned in any legal proceedings. On the whole the courts have viewed
these formulae with disfavour and as far as possible have disregarded
them. 17 Indeed, section 11 ( 1 ) of the Tribunals and Inquiries Act 1958
emptied them of binding content in then existing legislation; though
section 11 ( 3 ) listed a few exceptions to this rule and preserved the effect

16. [19561 A.C.-736. See now R. v. Secretary of State for the Environment, ex p.
Ostler [19761 3 W.L.R. 288, p. 558 below.
17. de Smith, op. cit., ch. 7. For an extreme example, sec Tehrani v. Rostron [1972]
1 Q.B. 182.

Judicial Review of Administrative Action : Principles 553

 ,

of a general exclusionary formula if the parent Act allowed an order to be

challenged within a specified period . 18
The other method of excluding the jurisdiction of the courts to determine
questions of vires used to be, surprisingly, more efficacious in practice.
Powers may be granted to a Minister or a local authority in ‘objective’
or ‘subjective* terms. An ‘objective’ grant of power is expressed thus: ‘If
X conditions are present, the Minister may take Y action or make Z
order.’ In such a case the courts may decide for themselves whether X
conditions did, as a matter of law or fact, exist; if they decide that the
conditions precedent were absent, the order or act will be ultra vires But .

Parliament may grant powers in ‘subjective’ language: if the competent

authority ‘is satisfied’, or ‘is of the opinion’, or ‘if it appears to’ that
authority, that a prescribed state of affairs exists, it may do certain things.
In such cases the courts were once inclined to refuse to make an assessment
whether the conditions precedent existed, especially if the authority en-
trusted with the power was a Minister responsible to Parliament. Now-
adays the courts are less easily deterred 19 They are still disinclined to make
.

an independent determination of a question of fact on which there is a

conflict of evidence; and have been found by an inspector after an
if facts
20
inquiry they will be slow to differ from his findings However, the courts
.

will not be readily deterred from deciding a question of law for themselves
and they will generally insist that findings of fact must not be based on an
erroneous legal approach, or on irrelevant considerations, nor must the
finding be manifestly unreasonable. The burden of showing that the com-
petent authority had so misdirected itself as to render its decision ultra vires
21
will usually lie on the person challenging that decision .

Up to now we have been using the language of vires. There is another,

associated language - the language of jurisdiction. The terms ultra vires

18. See further, pp. 557-9.

19. See Secretary of State for Education v. Tameside M.B.C . [1976] 3 AH E.R. 665,
H.L. per Lord Wilber force, p. 681 ; R. v. Minister of Housing and Local Government,
exp. Chichester R.D.C. [1960] 1 W.L.R. 587; Webb v. Minister of Housing and Local
Government [1965] 1 W.L.R. 755; Maradana Mosque Trustees v. Mahmud [1967] 2
A.C. 337; the Coleen case (below). See also Ashbridge Investments Ltd v. Minister
of Housing and Local Government [1965] 1 W.L.R. 1320; cf. the analysis adopted in
J?. v. Income Tax Special Purposes Commissioners (1888) 21 Q.B.D. 313 at 319 (Lord

Esher M.R.) and McEldowney v. Forde [1971] A.C 632. And see pp. 327, 338-40.
20. Even if they have been rejected by the Minister: Coleen Properties Ltd v. Minister
of Housing and Local Government [1971] 1 W.L.R. 433.
21. See Secretary of State for Employment v. ASLEF (No. 2) [1972] 2 Q.B. 455;
Att.-Gen ., ex rel. McWhirter v. IB A [1973] Q.B. 629 (in both these actions the court
was much influenced by the circumstances in which the relevant authority was required
to reach its decision), cf. the approach of the House of Lords in Padfield v. Minister
of Agriculture [1968] A.C. 997.

554 Administrative Law

and excess (or want, or lack) of jurisdiction are often used interchangeably
like breach of privilege and contempt of a House of Parliament. NeveiW
less, they are not always identical in meaning; sometimes they have
to be
analysed in different terms and convey different implications. These
ambiguities create difficulties for students.
The vocabulary of ‘jurisdiction ’
is normally used when one is discussing
tribunals or similar bodies. Inferior tribunals (magistrates’ courts, county
courts, special tribunals, professional disciplinary bodies, committees of
clubs and trades unions,
arbitrators, Ministers deciding legal disputes)
have
a limited jurisdiction or area of authority. By the end of the seventeenth
century it was settled law that the Court of King’s Bench could issue
the
prerogative writ of certiorari to quash a decision by a statutory tribunal
outside jurisdiction, and a writ of prohibition to restrain a tribunal irum
going outside or continuing to act outside its jurisdiction before it had
come to a final decision. Jurisdiction might be exceeded because the tri-
bunal was wrongly constituted, or because other essential preliminaries (for
example, the time or manner of instituting the proceedings) had not been
observed or because it tried a case outside its area of competence (for
example, because had no authority to deal with the persons or subject-
it

matter or if beyond its territorial jurisdiction); or because,

the matter lay
although the stage was properly set in the first place, the tribunal went on
to commit very serious procedural errors, or made an order outside its
competence (for example, by imposing a fine when it could only award
compensation). All these errors went to jurisdiction But on matters lying
‘

within the area of jurisdiction (or ‘going to the merits’) the tribunal might
be entitled to err on matters of law and fact and remain immune from the
supervisory jurisdiction of the courts. The superior courts could set aside
determinations embodying errors within jurisdiction only if (i) the error
was one of law and was apparent on the face of the ‘record of the tribunal, ’

in which case certiorari would lie to quash, or (ii) a right of appeal was
provided by statute. Jurisdiction to decide implied jurisdiction to decide
wrongly as well as rightly, and a latent error of law within jurisdiction was
beyond correction except on appeal. If every erroneous finding by an
inferior tribunal were to be equated with an excess of jurisdiction, then
members of tribunals might find themselves constantly being sued for
damages on account of honest mistakes.
Questions about vires are not usually analysed in this way; and this
classificationof errors may seem very odd and artificial. If one takes a
hypothetical example it looks a little less strange. Suppose that there is no
right of appeal from the decision of a magistrates’ court. Such a court
convicts a person of wilful obstruction of the highway, giving no reason
for its decision; in fact he is innocent. The decision is wrong, but it is one

Judicial Review of Administrative Action: Principles 555

 and cannot be challenged. Take another
within the jurisdiction of the court
case: the same magistrates’ court convicts a man of manslaughter; he is
in fact guilty, but the magistrates have no power to convict for that
offence; the conviction will therefore be quashed by the High Court for
want of jurisdiction on an application for certiorari.
In practice the distinction between matters going to jurisdiction (col-
lateral and preliminary matters) and matters within jurisdiction (or going
to the merits) is often almost impossible to draw. 22 Early in the nineteenth
century the superior courts came close to abdicating from supervisory
control over inferior tribunals, holding that if the necessary jurisdictional
conditions were present at the outset of the hearing, every decision by an
inferior tribunal on a point that it was obliged to determine fell within the
scope of its jurisdiction. But this position was not consistently maintained,
and the courts wavered from one stance to another, showing a broad
tendency to hold wrong findings to be jurisdictional and therefore review-
able and right findings non-jurisdictional.
Today the distinction between jurisdictional (reviewable) error and non-
jurisdictional (unreviewable) error has lost most of its importance for the
following reasons:

1. From most inferior statutory tribunals, appeals now lie on questions

23
of law to the superior courts. It is therefore more important to know
whether a finding is one of law or fact than whether it is jurisdictional or
non-jurisdictional.

2. In the early 1950s the long-forgotten inherent power of the High

Court
to quash by certiorari for non-jurisdictional error of law was revived. If
certiorari was to lie, the error had to be patent and visible on the written
24
‘record’ of the inferior tribunal. The ‘record’ was the written statement
statutory
of the tribunal’s decision, read in conjunction with the relevant
provisions. It might (or might not) set out reasons for the decisions,
and
as incorporating
findings and inferences of fact, and could be interpreted
25 of this
documents referred to in this written statement. The importance
courts was affected in three ways by the Tribunals
supervisory power of the
First, it was reduced by the extension of
appeals
and Inquiries Act 1958.

22. The leading work on this very difficult topic is Amnon Rubinstein, Jurisdiction

and Illegality .

23. See especially Tribunals and Inquiries Act 1971, s. 13.

1 K-.n
24. R. v. Northumberland Compensation Appeal Tribunal exp. Shaw [1951]
in computing statutory compensation
711; affd. [1952] 1 K.B. 338 (C.A.) (error of law
for loss of ofiicc). , .... . . .. +
.

25. The record can supplemented by affidavits disclosing jurisdictional

certainly be
defects^ and, according to two members of the
Court of Appeal, by affidavits showing
errors of law within the jurisdiction: R. v.
Southampton JJ., exp. Green [1976J Q.B. 11

556 Administrative Law

 on points of law from statutory tribunals. Secondly, it was increased, in
those instances where no appeal still lay, by the extension of the duty to
give reasons for decisions on request; if a decision was erroneous in law,
the error would often be disclosed by the reasons given. Previously some
tribunals had simply refused to give reasons for decisions and thus pro-
tected their decisions against effective review. Moreover, oral reasons
became part of the record. 26 Thirdly, statutory provisions purporting to
exclude review by certiorari lost their effect. 27
3. Decisions by the Minister on planning appeals, compulsory purchase
orders and a number of other contested issues in the law of housing and
town planning and other areas affecting private rights in land can be
challenged in the High Court only on the grounds that the order is not
within the powers conferred by the Act or that a procedural or formal
requirement has not been complied with. Of late the courts have tended
to proceed on the assumption that any decision by the Minister which they
hold to be erroneous in law renders his determination ultra vires (outside
his powers, or in excess of jurisdiction) and therefore liable to be quashed. 28
There seems to be barely any room, in these contexts, for the concept of
error of law within jurisdiction. Illegality is equated with invalidity.
4. In the Anisminic case, the House of Lords almost obliterated the juris-
The Foreign Compensation Com-
dictional/non-jurisdictional distinction.
mission was charged with the duty of determining (a) who was entitled to
claim compensation under an Order in Council prescribing the circum-
stances under which claims would be admissible in respect of money
received from the Egyptian Government for expropriation of British-
owned assets in Egypt after the Suez venture and (b) what discretionary
sum of money should be allocated to an approved claimant. The question
who was entitled to claim was surely the core of the issue; it appeared to
‘go to the merits* of a determination.

The Order in Council (made under the Foreign Compensation Act 1950)
specified that British nationals and British successors in title to British
26. Tribunals and Inquiries Act 1958, s. 12; see now Tribunals and Inquiries Act
1971, s. 12.
27. ibid., s. 11 (p. 553 above). It was accepted that apart from section 11 they would
.have been effective to bar certiorari for error of law not going to jurisdiction. See now
Tribunals and Inquiries Act 1971, s. 14.
28. See, for example, Iveagh v. Minister of Housing and Local Government [1962]
2 Q.B. 147, [1964] 1 Q.B. 395 (dicta); Ashbridge Investments Ltd v. Minister of Housing
and Local Government [1965] 1 W.L.R. 1320; Quiltotex Ltd v. Minister of Housing
and Local Government [1966] 1 Q.B. 704. See also the Coleen case [1971] 1 W.L.R. 433.
But in Brook dene Investments Ltd v. Minister oj Housing and Local Government (1970)
21 P. & C.R. 543, where the question of equivalence was raised, the point was left
open.

Judicial Review of Administrative Action : Principles 557

 nationals were entitled to claim; but the wording raised difficult legal
problems. Anisminic Ltd, a British company, had been forced to sell their
mining assets in Sinai to an Egyptian-owned company. Were Anisminic
entitled to claim out of the fund? The Commission held that they were not.
Anisminic brought an action claiming a declaration that the Commission’s
determination was a nullity. Browne J. found in their favour; 29 the Court
of Appeal reversed this decision; 30 the House of Lords, by a majority,
restored the judgment of the court of first instance. 31 This may seem odd,
for section 4(4) of the 1950 Act had laid down that a determination by the
Commission was not to ‘be called in question in any court of law’, and
section 11(3) of the Tribunals and Inquiries Act 1958 had expressly
preserved the effect of this provision. But the Lords held that the Com-
mission had exceeded its jurisdiction by misconstruing the Order in
Council; it had aske.d itself and answered the wrong question, taking
irrelevant considerations into account and interposing a new hurdle of its
own making for a claimant to clear; its purported determination was there-
fore no determination at all, and could properly be impugned in a court. It
was conceded that the exclusionary formula would bar judicial review of
a determination exhibiting an error of law within jurisdiction; but one is
leftwondering what kind of error of law would have been held not to go to
jurisdiction. 32 This particular question has now become academic. By
section 3 of the Foreign Compensation Act 1969 appeals on question of
law (including jurisdictional questions) will lie from the Commission to the
Court of Appeal.
Despite the Anisminic decision Smith v. East Elbe 33 is still good law on
its particular facts. The Court of Appeal has recently held that where there

is an opportunity of obtaining judicial review, even though the time is

brief, an administrative or executive decision is not open to review after the

time limit has expired: v. Secretary of State for the Environment ex p. ,

Ostler 3A Should the plaintiff’s ground for challenging the decision go to

29. See Note [1969] 2 A.C. 147 from this long judgment.
at 223 for extracts
30. Anisminic Ltd v. Foreign Compensation Commission [1968] 2 Q.B. 862; the Court
held that the determination of the question fell within the scope of the Commission’s
jurisdiction.
31. [1969] 2 A.C. 147.
32. [1969] Camb.LJ.161 (de Smith) and 170 (H. W. R. Wade); (1969) S5 L.Q.R. 198
(Wade), [1970] Public Law 358 (Gould); (1971) 24 Current Legal Problems 1 (Lord
Diplock). Possible examples of law within jurisdiction include errors as to the burden of
proof or the admissibility of evidence (where rules of evidence have to be observed).
33. See p. 553.
34. [1976] 3 W.L.R. 288; but contrast the dicta in Jeary v. Chaley R.D.C. (1973)
226 Estates Gazette 1199. The East Elloe decision has been followed since Anisminic
in two cases: Routh v. Reading Corporation (1971) 217 Estates Gazette 1337 (C.A.)
and Hamilton v. Secretary of State for Scotland 1972 S.L.T. 233.

558 Administrative Law

jurisdiction, however, their Lordships suggested in Ostler's case that such
a claim would be entertained. The public interest in preventing the dis-
ruption that might occur if the validity of a compulsory purchase order
could be impugned long after the event - when property might have been
acquired and demolished - clearly influenced the Court of Appeal.
Equally it is always possible that if serious hardship or injustice had been
caused to the plaintiff the court could arrive at a decision in his favour by
reviving one of two old stratagems, either reconsideration of the terms
‘administrative’ and ‘executive’, or juggling with the concept of juris-
diction so as to decide that in the case before them the error on the part of
the authority was such as to oust its jurisdiction.

Law and fact

Although the relatively ////important distinction between jurisdictional and

non-jurisdictional matters so hard to draw or deline, perhaps we can

is

explain the really important distinction between matters of law and matters
of fact more easily. Unfortunately this is not so: the latter distinction is
fiendishly difficult to define or even to illustrate at all clearly.
The superior courts will afford redress for errors of fact in two main
situations: first, in those rare circumstanceswhere rights of appeal are
not restricted to questions of law; and secondly, where a factual error
causes a tribunal to step outside its As we have indicated, the
jurisdiction.
courts will be somewhat reluctant to make an independent determination
of a question of pure fact if the issue turns upon conflicting evidence and
they have not heard the oral testimony themselves.
Whether X
hit Y
on the head is a question of fact. The state of X’s
mind at the time is also a question of fact (or of opinion). These questions
will be left to the jury to answer. Whether X’s conduct is capable of being
construed as maliciously causing grievous bodily harm to Y is a question
35

of law on which the judge directs the jury; the words ‘maliciously’ and
‘grievous bodily harm’ have acquired technical legal meanings. We can
describe the whole issue as one of mixed law and fact.
Decisions by special tribunals and public authorities are made without
juries; so one convenient line of demarcation is absent. Still, administrative
law controversies may sometimes be compartmentalized as questions
partly of law and partly of fact for the purposes of judicial review. Other

Under s. 14 of the Tribunals and Inquiries Act 1971 (replacing s. 11 of the 1958 Act)
statutory pi o visions enabling recourse to the courts to be had for a limited period
are

still excluded from the abrogation of ouster clauses.

35. Offences against the Person Act 1861, ss. 18, 20, as amended by the Criminal

Law Act 1967.

Judicial Review of Administrative Action: Principles 559

approaches to analysis may be adopted. An entire question may be charac-
terized as one of law, or as one of fact (or fact and degree, which means
‘fact’). The technical meaning of a term used in a public contract may be

a pure question of law, because only a trained lawyer could be expected

tp understand it in the light of principle and decided authority. If a tribunal
is obliged to observe the rules of evidence or specified statutory procedures,

and there is no dispute as to what actually took place, a question whether

the rules were duly observed is again purely one of law. But suppose that
the question is whether a building is a dwelling-house, or ‘of special
architectural or historic interest’, or is ‘unfit for human habitation’, or

whether an industrial injury arose ‘out of or in the course of employment’,

or whether consent to a particular act was ‘unreasonably withheld’, or
whether there was a ‘material change in the use’ of land for which planning
permission was required. The tribunal or other deciding body finds the
basic or primary facts (for example, who did which and with what and to
whom?); it may draw inferences from the facts; it has to go on to decide
whether the facts as found fall within the ambit of the statutory description .

A court, on review or appeal, can choose whether to characterize the con-

clusion as one of fact or as one of law; either form of characterization is
possible, for here we are in a ‘grey zone’. Generally speaking, the following
are categorized as questions of fact: questions decided by specialized ex-
pert tribunals in which the courts repose confidence; questions on which
reasonable persons might arrive at divergent conclusions; questions which
the courts consider to have been correctly decided; questions on
which the
courts would find it very difficult to form an independent
judgment without
hearing all the evidence.
of law
Findings of fact may still be held to embody reviewable errors
supporting evidence at or if the con-
if they are made without any
all,

that the facts as found point

clusions drawn from them are perverse (in
of a wrong
unmistakably the other way) or are based on the application
test or if the reasons given for the findings or conclusions are
legal
unintelligible or inadequate in law; in these
cases the tribunal will be held
law. Nevertheless, the courts will be slow to
to have misdirected itself in
erroneous findings, inferences or conclusions of fact. For
interfere with
instance, in one case the question was
whether land had been developed
without planning permission; the central issue
was whether the change of
use to which it had been put was ‘material’. The only change was the
an automatic egg-vending machine in the forecourt of a
installation of
36
that whether a change of use was
petrol-filling station. The court held

W.L.R. 247 (enforcement

36. Benches Motors Ltd v. Bristol Corporation [1963] 1

notice) — an appeal on a question of law.

560 Administrative Law

‘material’ was a question of and degree ’, 37 not a question of law;
‘fact
the local planning authority’s decision that there had been a material
change of use was surprising, but it was not so perverse as to justify the
court’s interference. If the question had been categorized as one of law, the
court could have substituted its own opinion. Now, if the court had
adopted a slightly different approach - if it had applied the following test:
there is an error of law if the inference or conclusion drawn from the facts
found could not reasonably have been arrived at 38 - it might possibly have
set the decision aside. Sometimes the courts do apply this broader test to
conclusions of fact.

Natural justice 39

The rules of natural justice are minimum standards of fair decision-making

imposed by the common Jaw on persons and bodies who arc under a duty
to ‘act judicially’. There are two rules of natural justice: nemo judex in
causa sua (nobody is to be judge in his own cause) and audi alteram partem
(hear the other side; the parties are to be given a fair hearing). They were
first applied to proceedings in courts of justice; they were extended by

analogy to various administrative law situations. They are not precise rules
of unchanging content; their scope will vary according to the context, and
in some recent cases they appear to have been endowed with a kaleido-
scopic unpredictability. There has been a recent tendency in the courts to
speak of a ‘duty to act fairly’, which sometimes (but not always) is broader
than the duty to observe natural justice 40 Even where the rules of natural
.

justice are prima facie applicable, they may be partly or wholly excluded
by clear statutory language or necessary implication.

Nemo judex in causa sua41

The rule has two main aspects. First, an adjudicator must not have any
direct financial or proprietary interest in the outcome of the proceedings.
Secondly, he must not be reasonably suspected, or show a real likelihood,
of bias.

37. See the valuable articles by Wilson in (1963) 26 Mod. L. Rev. 609; (1969) 32
Mod . L. Rev. 361.
38. See Ashbridge Investments Ltd v. Minister of Housing and Local Government
[1965J 1 W.L.R. 1320 at 1326 per Lord Denning M.R.; adopted in British Dredging
(Services) Ltd. v. Secretary of State for Wales [1975] 1 W.L.R. 687.
39. Paul Jackson, Natural Justice (1974).
40. See pp. 572-4.
41. de Smith, op. cit., ch. 5.

Judicial Review of Administrative Action : Principles 561

 In its first aspect, the rule is very strict. No matter how small the ad-

judicator’s pecuniary interest may be, no matter how unlikely it is to affect

his judgment, he is disqualified from acting and the decision in which he
has participated will be set aside 42 unless (i) the parties are made fully
,

aware of his interest in the proceedings and clearly waive their right to
object to his participation, or he is empowered to sit (or the validity
(ii)

of the proceedings is preserved if he does sit) by a special statutory dis-

pensation 43 or (iii) in very exceptional circumstances, all the available
adjudicators are affected by a disqualifying interest, in which case they may
have to sit as a matter of necessity Perhaps . we should classify under the
same heading the rule that nobody should act as both judge and prosecutor,
advocate in a controversy. But here we begin to move towards
plaintiff or
the second aspect of the rule.
If an adjudicator is likely to be biased he is also disqualified from acting.
Likelihood of bias may arise from a number of causes: membership
of an
organization or authority that a party to the proceedings; partisanship
is

expressed in extra-judicial pronouncements; the fact of appearing as a

witness for a party to the proceedings; personal animosity or friendship
towards a party; family relationship with a party; professional or com-
mercial relationships with a party; and so on. The categories of situations
potentially giving rise to a likelihood of bias are not closed.
The test of likelihood of bias must be applied realistically. If a con-
troversy has aroused strong local passions, one cannot reasonably demand
that every member of a local bench of magistrates deciding the issue must
have maintained a total and detachment from the controversy from
lofty
the time when it first arose. When
a Minister (like the Minister in the
Stevenage case) is placed by a statute in a position where he must inevitably
incline own provisional decision notwithstanding
toward confirming his
the force of objections subsequently expressed, he cannot be subjected to
the rigorous standards of impartiality rightly imposed on a superior judge
or indeed on a member of an independent statutory tribunal . 44

42. In Dimes v. Grand Junction Canal Proprietors (1852) 3 H.L.C. 759 a decree
made by the Lord Chancellor was set aside because he was a shareholder in the company
which was a party to the proceedings.
43. See R. v. Barnsley Licensing JJ. [1960] 2 Q.B. 167; Licensing Act 1953; s. 48(5).
In that case all the licensing justices were members of the cooperative society which
was applying for an off-licence to sell liquor, but legislation provided that their
pecuniary interest was not to affect the validity of their decision. (See now Licensing
Act 1964* s. 193(6).) This did not prevent the decision from being challenged on another
ground (likelihood of bias). See also Jeffs v. New Zealand etc Marketing Board [1967]
.

1 A.C. 551 ; p. 572.

44. Franklin v. Minister of Town and Country Planning [1948] A.C. 87 (pp. 541-2),
where it was held that no duty to observe natural justice was cast on the Minister.

562 Administrative Law

 How should the of disqualification for likelihood of bias be form-
test

ulated? The of disqualification for personal interest is based on

strict test
in the administration of justice must
the principle that public confidence
the smallest suspicion of judicial impropriety;
not be impaired by even
rule looks' to the appearance of the matter to an outsider. Occasion-
the
ally the courts have adopted a similarly exacting approach to the ‘like-
'

retired with the bench while they

'

lihood of bias ’ test. A magistrates’ clerk

in a case of dangerous driving; the de-
were considering their verdict
he applied, successfully, for certiorari to quash tbe
fendant was convicted;
on the ground that the clerk belonged to a firm of solicitors
conviction,
the other party to the accident out
acting in civil proceedings on behalf of
It was ‘ of fundamental importance
of which the criminal proceedings arose.
not only be done, but should manifestly and undoubt-
that justice should
’. 45 Yet in that case there was no evidence at all that
edly be seen to be done
to influence the decision. A more
the clerk had influenced or attempted
formulation of the test Would a member of the public, looking
common is :

at the situation as a whole, reasonably

suspect that a member of the ad-
judicating body would be biased? Another common formulation is: Is
46
there in fact a real likelihood of bias ?
There is no need, on either formula-
tion, to prove actual bias; indeed, the courts may refuse to entertain
bias of a member of an inde-
submissions designed to establish the actual
inquiry would be unseemly.
pendent tribunal, on the ground that such an
suspicion’ and ‘real likelihood’ of bias
In practice the tests of ‘reasonable
the same result. Seldom indeed will one find a situa-
will generally lead to
reasonable persons adequately apprised of the facts will
tion in which
the facts will hold that there
reasonably suspect bias but a court reviewing
was no of bias. Neither formulation is concerned wholly
real likelihood
reality. In ninety-nine cases out
with appearances or wholly with objective
to ask itself whether a reasonable
of a hundred it is enough for the court
that there was a substantial possi-
person viewing the facts would think
47
bility of bias .

McCarthy [1924] 1K.B. 256 at 259 , per Lord HewartCJL

45. R. v. Sussex JJ., exp.
magistrates or a jury retire? h cannot
But is justice ‘ seen’ to be done when judges or ^
decisions. And see R. v. Barnsley Metro-
‘seen’ to be done in the case of departmental
1 W.L.R. 1052, C-A.
(market manager
poZn BoroZt Council, exp. Hook [1976]
a stallholder present on both occasions when the stall
who initiated complaint against
holder annealed against the revocation of his
licence). _
Barnsley Licensing
41 Hr™ Camborne JJ., exp. Pearce [1955] 1 Q.B. 41 at 51 ; it. v.

F.G.C.) Ltd',’. Lannon [1969] 1 Q.B. 5T7

47. See Metropolitan Properties Co. (

-ing of decision of rent assessment

committee because of the chairmansopp
See also
landlords in similar controversies).
another capacity to the contentions of the
.Corporation [1970] 1 W.L.R. 937 and R. v. Altrincham JJ., exp-
Harnarn v. Bradford
Pennington [1975] Q.B. 549.

Principles 563
Judicial Review of Administrative Action :
 scope for the exercise of judicial discretion, given these
Clearly there is

vague criteria. Take three recent

cases. In one, the court reasonably de-
cided that a police medical officer who had already formed an unfavourable
opinion of a chief inspector’s psychiatric condition should be prohibited
from examining him again with a view to certifying him as permanently
48
disabled which could lead to compulsory premature retirement In .

another, the court held that it was contrary to natural justice for school
governors to sit as members of a local education authority’s sub-committee
which had to decide whether or not to uphold a decision of the governors
(taken at a meeting at which they had not been present) to dismiss a
49
teacher Yet in a third case, the court refused to interfere with a decision
.

by governors of a teachers’ training college to confirm the expulsion of a

student (who had had a man in her room for some weeks) although they
50
had initiated the disciplinary proceedings themselves .
Subject to the qualifications already indicated, the principles apply to the
conduct of all statutory tribunals, to bodies other than tribunals deciding
matters analogous to the judicial (for example, local authorities deciding
whether to grant a permit after objections have been lodged, or to revoke
a licence 51) and to Ministers deciding disputes between parties. If the
deciding body is a large one (for example, a local council), the pecuniary
52
interestof a single member will disqualify although it may be that like-
. lihood of his being biased will not unless he took an active part in in-
fluencing the decision. This is still a doubtful point.

Audi alteram partem

53
the more interestingand important rule of natural justice In its
.
This is

means that nobody shall be penalized by a decision of a

crudest form, it

prior notice of the charge

court or tribunal unless he has been given (a)
has to meet, and (b) a fair opportunity to answer the case
or case he
*
against him and to put his own case. The rule
extends to a number of
situations is a fasci-
situations in administrative law. To pinpoint those

nating but complex task.

48. R. v.Kent Police Authority , ex p. Godden [1971] 2 Q.B. 662.
49. Hannan?* case (above). „
•
50. Ward v. Bradford Corporation (1971)
70 L.G.R. 27 (Hannam s case was not
between the two cases seem to have been
referred to). The only material distinctions
of W’s conduct.
that (i) was losing his job and (ii) the court strongly disapproved
H
51. See Hook's case (note 45 above). . . ,. .

K.B. 696 (unanimous decision by

52 R v Hendon R.D.C., cx p. Charley [1933] 2
quashed because one councillor was an
council on application to change use of land
estate agent acting for an interested party). . . . .

ramifications of the rule are indicated by the

53. de Smith, op. cit., ch. 4. The many
fact that this chapter is over eighty
pages long.

564 Administrative Law

 The rule has a venerable Jiistory. In a case decided in 1723, a judge
ascribed it Garden of Eden God did not condemn
to the events in the :

Adam or Eve without first calling upon them to answer the allegation of
disobedience to the divine command. The setting of this case was far
removed from Eden or indeed from the proceedings of a court of law: a
Dr Bentley had been deprived of his academic degrees in the University
of Cambridge without notice or hearing, and he obtained a mandamus to
secure reinstatement. 54 Deprivation of liberty or property, or of rights
analogous to proprietary rights - and a freehold office, or an office from
which the holder was removable only for cause stated, was of this character
- was unlawful unless preceded by the rudiments of natural justice. The
same general principle governed the disciplining of the clergy by bishops,
the conduct of arbitrators, and cases in which professional bodies and the
executive committees of clubs and trades unions had decided to expel a
member or deprive him of his status. In 1863 came the important decision
in Cooper v. Wandsworth Board of Works where a public authority de-
,

molished a house without giving the owner prior notice or an opportunity

to make representations on his own behalf; he obtained damages for
trespass, for the public authority had failed to observe a rule ‘of universal
application and founded on the of justice’; the court
plainest principles
then ‘invoked the justice of the common law to supply the omission of the
legislature’ which had not given the property-owner any express right to
be heard. 55 This decision was followed in a number of cases of a similar
nature. Three points need to be noted. First, the act or decision in question
was not that of a court of justice, nor would it normally be characterized
as a ‘judicial’ act. Secondly, the duty to act judicially (in accordance with
natural justice) was inferred from the impact of an act or decision on indi-
vidual rights; there was no pre-existing statutory duty to follow a judicial-
type procedure. Thirdly, the decision-making body was not determining
a ‘triangular’ situation; there were but two ‘parties’, itself and the person
affected by its conduct.
The same general principle was applied to departmental adjudication.
Ministers and officials were under an implied duty to ‘act in good faith
and fairly listen to both sides, for that is a duty lying upon everyone who
decides anything’. But they were not bound to act like judges in a court.
They could obtain information in any way they thought best, ‘always
giving a fair opportunity to those who are parties in the controversy for
correcting or contradicting any relevant statement prejudicial to their
view’ {Board ofEducation v. Rice (191 1)). 56 Still, this did not entitle a party

54. JR. v. Chancellor of the University of Cambridge (1723) 1 Str. 557.

55. (1863) 14 C.B. (N.S.) 180 at 190, 194.
56. [1911] A.C. 179 at 182.

. Judicial Review of Administrative Action Principles 565

:
to a housing appeal to see an inspector’s report submitted to a Minister, or
57
to be heard orally before the official who made the decision.

Clearly, not every decision affecting individual interests has to be pre-

ceded by prior notice and an opportunity to be heard. It may be quite
impracticable because of a paramount need for secrecy, or because the
number of persons affected is so large, or because delay would make it
impossible to take urgent remedial or preventive action; or there may be
adequate substitutes (for example, inspection, tests, interviews) for a hear-
ing. Again, it may be impossible to obtain certain information at all (for

example, highly confidential reports) if it is known that disclosure to the

person concerned (for example, an applicant for a licence or a company
58
tendering for a contract) will take place. Even where a duty to observe
natural justice is applicable^ the scope of the obligation imported may be
modified in the public interest or the interests of the parties - for example,
where it would be harmful to an applicant for social security benefit to have
a distressing medical report disclosed to him, 59 or where the interests of
infants would suffer if a psychiatric report made to the court were to be
publicized. 60 The decision to withhold such reports should, however, be
61
exercised sparingly.
However, it isstate a general rule subject to exceptions; it
one thing to
isanother thing to formulate the general rule in terms so narrow that it
becomes an exception* itself. In the period from 1920 to 1960 the courts
almost ignored the general principles framed in Cooper v. Wandsworth
Board of Works. 61 Thus, an alien subject to a discretionary deportation
63
order had no legal right to make representations on his own behalf. Wide
discretionary powers were assumed to be inconsistent with a duty to act
judicially, irrespective of their impact on individual interests, unless there
was a ‘triangular’ situation, with X
deciding a dispute between and Z, Y
in which case a duty to observe natural justice was superimposed upon
64
a pre-existing statutory duty to hold a hearing or inquiry. In the early

57. Local Government Boards. Arlidge f 191 5] A.C. 120.

58. cf. Collymore v. Att.-Gen. [1970] A.C. 538 at 549-51 (P.C.). In such situations

there may still be a general duty to observe natural justice, subject to exceptions: R. v.
Gaming Board for Great Britain, ex p Benaim and Khaida [1970] 2 Q.B. 417Jnote 95).
.

59. This is expressly provided by regulations. In Godden's case (note 48, above), the
court directed that the police medical officer’s previous report be disclosed to the
applicant’s own doctor but not to the applicant himself.
60. As in a child custody case: Be K
{Infants) [1965] A.C. 201. See also note 57.
61. See Re WLW [1972] 1 Ch. 456 and Re M [1973] Q.B. 108.
62. Note 55.
63. Ex p. Venicoff [ 1 920f 3 K.B. 72; followed in SohlerC s case [1963] 2 Q B. 243.
64. See the comment on conceptual analysis of the Housing Act cases (pp.
542-3).

566 Administrative Law

 1950s the rules of natural justice seemed to h:. . „
the .

lumber-room. The Controller of Textiles in CL,..,.: „

dealer’s licence if he had reasonable grounds for believing him cc ^ <

0
hold a licence; no procedural duty was explicitly cast on him; Ui rr.,y
Council rejected the contention of a dispossessed licence-holder that the
Controller was under an implied duty to give him' a fair hearing before
depriving him of his licence; no judicial duty was cast upon the Controller
who was merely taking ‘executive action to withdraw a privilege’ (Nakkuda
Ali Jayaratne). 65 In Parker's case 66 the Divisional Court of the Queen’s
v.

Bench Division held that the Commissioner of Metropolitan Police, who

had a discretionary power to cancel cab-drivers* licences, was under no
duty to observe natural justice in arriving at his decisions; his powers were
administrative and disciplinary.
67
A
sl.um landlord’s legal rights in a
tumbledown house had been accorded better legal protection than the
‘privilege’ of a man to earn his livelihood.
In the early 1960s the courts began to move towards a more flexible
position; and in 1963 came the turning point. In Ridge v. Baldwin 68 the
House of Lords held that the Chief Constable of Brighton, the holder of
a public office from which he was removable only for cause (neglect of
duty or inability) could not validly be dismissed by the local police
authority in the absence of notification of a charge and an opportunity to
be heard in his defence. 69 This was in part a reversion to the old line of
authority on deprivation of a ‘freehold’ office; in part a rejection of the
mistaken ideas that natural justice could be imported only into a ‘triang-
ular’ situation in which there was an express statutory duty to hold a
hearing or inquiry, and that the duty to act judicially could exist only

65. [1951] A.C. 66. This decision has been widely criticized by commentators and
would probably not be followed by an English court today. See dicta cited at note 76
below, and Ridge v. Baldwin [1964] A.C. at 77, though cf. Durayappah v. Fernando
[1967] 2 A.C. at 349.
66. R. v. Metropolitan Police Commissioner ex p. Parker [1953] 1 W.L.R. 1150
,

(driver alleged to have allowed prostitutes to solicit from his cab). No duty to give an
opportunity to be heard was imposed by statute. Contrast Banks v. Transport Pegu*
lation Board (1968) 119 C.L.R. 222 (a decision of the High Court of Australia).
67. See also Ex p. Fry [1954] 1 W.L.R. 730 (Divisional Court refused to review
conduct of disciplinary proceeding against a truculent fireman, holding that the
proceeding was non-judicial and interference would be contrary to public policy).
68. [1964] A.C. 40.
69. The judgment of Lord Reid at 71-9 is the leading modern exposition of the rule.
Whether breach of the rules of natural justice renders a decision void or merely void-
able raises complex questions to which no short answer is possible and no uniform
set of answers has yet been offered by the courts. See further H. W. R. Wade (1967)
83 L.Q.R. 526, (1968) 84 L.Q.R. 95; Akehurst (1968) 31 Mod.L. Rev 2, 138; de Smith,
.

op. cit. (3rd edn), pp. 209-12, 241-2. It seems that for most purposes (but not necessarily
all) such a decision will be held to be void.

Judicial Review of Administrative Action : Principles 567

 where the act or decision was analytically ‘judicial’;
and above all a
recognition that the underlying basis of the audi
alteram partem rule was
a common-law obligation to act fairly. 70
Since Ridge v. Baldwin the courts have widened the
ambit of the duty
They have held, for example, that Ministers in Ceylon
had an implied
duty to observe the rule before taking over the assets of
a denominational
school in arrears with the payment of teachers’
salaries, 71 and before
dissolving a municipal council for incompetence 72 that a
local constituency
party was entitled to the benefit of the rule before
being suspended or
disaffiliated by the national party organization; 73
that a Scottish school-
teacher dismissible at pleasure still had to be afforded an opportunity to be
74
heard before dismissal ; and that university students who failed an exam-
ination but could be allowed to resit at the discretion of
the examiners had
to be given a fair opportunity to put their own case against
being refused
permission to re-register. 75 There are dicta to the effect that
the holder of
a permit or licence should be given an opportunity to be
heard before
non-renewal or revocation if he had a legitimate expectation that
he would
retain his permit or licence. 76 And it can hardly be doubted
that a university
student cannot now be sent down summarily for misconduct; he must first
be given a chance to put his own case. 77
Today we can adopt a presumption that the rule will apply in the
following situations:

1. Where the deciding body is a court or tribunal. Such a body may

70. cf. Re H. K. {an Infant , [1967J 2 Q.B. 617 (a Commonwealth immigrant case),
and p. 573.
71. Maradona Mosque Trustees v. Mahmud T1967] 1 A.C. 13.
72. Duroyappah v. Fernando [1967] 2 A.C. 337 (a clearly ‘administrative* act).
73. John v. Rees [1970] Ch. 345. It is doubtful whether the express rules of a club,
political party, or other non-statutory body can validly authorize expulsion from
membership in disregard of natural justice; though see Gaimanv. National Association
for Mental Health [1971] Ch. 317 (company limited by guarantee).
74. Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578, H.L. His office had
a ‘statutory flavour’ and the Act was capable of being interpreted so as to entitle him
to put his own case.
75. R Aston University Senate , ex p Roffey [1969] 2 Q.B. 538. A vital factor may
. v. .

have been that the examiners could and did take into account matters other Jthan the
bare examination results, cf. Herring v. Templeman [1973] 3 All E.R. 569, and see
R. v. Post Office exp. Byrne [1975] I.C.R. 222 (where doubts were cast on the entitle-
,

ment of the Aston students to the remedy of certiorari in any circumstances).

76. Schmidt v. Home Secretary [1969] 2 Ch. 149 at 170, 171, 173-4. See also R. v
Gaming Board (note 58) at 430; Breen v. A.E.U. [1971] 2 Q.B. at 191. '

77. Ceylon University v. Fernando [1960] 1 W.L.R. 223 (expulsion for alleged cheat-
ing) was argued on the assumption that natural justice applied to this situation. Recent
trends and the decision in the Aston case (above) imply that this assumption is now cor-
rect. See also Glynn v. University of Keele [1971] 1 W.LJL 487 (disciplinary penalty)*

568 Administrative Law

 nevertheless be empowered or required by statute to act ex parte (hearing
one side only) in special circumstances - for example, to order that a person
suffering from a prescribed infectious disease be detained in hospital.

2. Where, although the deciding body is not a distinct tribunal, its functions
involve the holding of hearings or inquiries, or the determination of disputes
between parties; or where it is required to determine questions of law and
fact in individual cases and its decisions will have a direct impact on the
interests of the individuals concerned. 78

3. Even if these conditions are lacking, a body vested with a discretionary

power may be under an implied duty to observe natural justice before it

acts or decides, if (a) its discretion is subject to legal limitations, so that it

can be compared to a ‘judicial discretion’, 79 or (b) the impact of its act

or decision will be particularly severe on the legally recognized interests of
the person directly affected by it (for example, because it deprives him of
liberty or property or status or livelihood, or imposes a heavy penalty on
him, or casts a serious slur on his reputation). 80

In general, the rule does not apply in the following situations:

1. Where a body conducts an investigation but has no power to make a

binding decision. 81 However, the circumstances may still be such as to

attract the operation of the rule 82 - for example, where there is a public
expectation that the investigation or inquiry will be held in a judicial
manner, 83 or where the investigation exposes a person to a legal hazard
and is a necessary prelude to other proceedings which may culminate in

78. Though cf. Hounslow L.B.C. v. Twickenham Garden Developments Ltd [1971]
Ch. 233 (decision by architect terminating employment of building contractor; no duty
to act judicially because no characteristics of a ‘judicial situation’).
79. Contrast Aristides v. Minister of Housing and Local Government [1970] 1 All
E.R. 195 (Minister’s ostensibly unfettered discretionary power to extend the period
within which a local authority could make a compulsory purchase order in respect of
a clearance area held not to import any implied duty to allow property-owners in the
area to make representations against an extension of time). See also note 87.
80. cf. Durayappah v. Fernando (above) for an interesting reformulation of the
approach to be adopted. See also Breen v. A.E.U. [1971] 2 Q.B. 175.
81. See Herring v. Templeman (note 75 above), where the academic board of a
teacher training college recommended expulsion of a student, but the final decision
rested with the governors.
82. See Wiseman v. Borneman [1971] A.C. 297 (cf. Pearlbergv. Varty [1972] 1 W.L.R.
534) ; Re Pergamon Press Ltd [1971] Ch. 388 ; R. v. Race Relations Board exp. Selvara-
,

jan [1975] 1 W.L.R. 1686. ‘

*

'T
83. As in the conduct of a preliminary investigation by magistrates (but not in
a police investigation).

Judicial Review of Administrative Action: Principles 569;

his condemnation. 84 The duty of those conducting such investigations has
been expressed as a requirement that they ‘act fairly’ bearing in mind the
circumstances of the investigation. There is no requirement that they follow
any prescribed procedure, and the requirements of ‘fairness’ will differ
from case to case. 85
86
2. Where anexhaustive statutory procedural code has been prescribed.
Since the establishment of the Council on Tribunals, such codes have
proliferated. But the courts may hold that an ostensibly exhaustive
code imports further duties to act fairly in accordance with natural
justice.,

3. Where a decision affects so many people that it is really a legislative

act or where the range of public policy considerations that the deciding
88
body can legitimately take into account is very wide. This proposition
has to be expressed guardedly, for the idea of procedural fairness is not
necessarily thus restricted.

4. Where an employer decides to dismiss an employee. Unless contractual

or statutory procedural duties are cast on the employer, the courts may
'confine the employee to damages for breach of contract if the dismissal is
90
wrongful. 89 But there are now large exceptions to the general rule, par-
ticularly since the conceptof ‘unfair dismissal’ was introduced by the
Industrial Relations Act 1971 and preserved by the Employment Pro-
tection Act 1975. 91

84. See especially Re Pergamon Press Ltd [1971] Ch. 388 (inquiry by company
inspector; duty to apprise person of adverse impression an’d give him opportunity to
reply before report submitted); R
v. Kent Police Authority ex p. Godden [1971] 2 Q.B.
. ,

662 (p. 564 above), cf. Whangarei High Schools Bd [1973] A.C. 660.
Furnell v.

85. Maxwell v. Department of Trade and Industry [1974] Q.B. 523.

86. Wiseman v. Borneman Pearlberg v. Varty (back tax assessment cases, see
;

note 82); Furnell' s case (above).

87. See, for example, Essex C.C. v. Ministry of Housing and Local Government (1967)
66 L.G.R. 23 (designation of third London airport); Bates v. Lord Hailsham [1972]
1 W.L.R. 1373 (making statutory rules for solicitors’ charges).
88. Schmidt v. Home Secretary [1969] 2 Ch. 149 (non-renewal of entry permits for
alien Scientology students); Essex and Aristides cases, above.
'
89. See, for example, Vidyodaya University Council v. Silva [1965] 1 W.L.R. 77;
Pillaiv. Singapore City Council [ 1968] 1 W.L.R. 1278. The decision in Ridge v. Baldwin
[1964] A.C. 40 is not inconsistent with the principle; a chief constable is nobody’s
servant and enjoys a special legal status.
90. See MallocK s case (note 74) ; Hill v. Parsons ( C.A .) & Co. [1972] Ch. 305
(injunction to restrain wrongful dismissal).
’
91 . Under Sched. 1 6, Part III of the 1975 Act, read together with the Code of Industrial
Relations Practice, a dismissal may be unreasonable and unfair, and therefore com-
pensable, if the employee was denied an opportunity to put his case before dismissal;
Earl v. Slater & Wheeler (Airlyne) Ltd [1973] 1 W.L.R. 51.

570 Administrative Law

 5. Where a decision entails the allocation Oi '^curccs-for
example, university places, council houses, industrial grants, certain
discretionary licences - for which there are numerous competitors. But
withdrawal or non-renewal of any such advantage may, in justice, have
to be preceded by notice and an opportunity to make representations. 92
In addition, as we have seen, factors such as urgency or an overriding
need for confidentiality may negative the existence of a prima facie duty
to observe the rule or aspects of the rule. Nor need the rule be observed in
the exercise of a prerogative power (for example, withdrawal of a passport).

Content of the rule

Notice must be adequate in its terms, so that the prospective victim knows
the essence of the case he has to meet and can prepare his answer properly;
and .
time must be given for representations to be made. If an oral
sufficient
hearing is it may have to be adjourned where injustice would other-
held,
wise arise; a party must not be taken by surprise, nor be deprived of a
reasonable opportunity to prepare his case. 93 There is no fixed rule that the
right to be heard means a right to be heard orally; in some situations a case
can be properly put in writing. 94 But there is a rebuttable presumption in
favour of a duty to afford an oral hearing if one is requested. All relevant
information, from whatever source it may come, should be disclosed to a
person who may be prejudiced by its concealment, unless full disclosure
would be injurious to the public interest. 95
At an oral hearing, the parties must be allowed to call witnesses and
make submissions; the proceedings must be fairly conducted so as to
enable the parties to put their own cases. Normally a party must not be
prevented from cross-examining witnesses on the other side; 96 but there
92. See note 76.
93. R. v. Thames Magistrates ex p. Polemis [1974] 1 W.L.R. 1371 (defendant
,

refused an adjournment by magistrates and thus unable to prepare his defence).

94 Local Government Board v. Arlidge [1915] A.C. 120; R. v. Housing Appeal
Tribunal [1920] 3 K.B. 334; Brighton Corporation v. Parry (1972) 70 L.G.R. 576.
95. See, for example, R. v. Gaming Board\ ex p. Benaim and Khaida [1970] 2 Q.B. 417
(applicant for gaming-club licence entitled to know essential elements of case against
him but not identity of informants or details tending to reveal confidential sources of
information). See also p. 566. And see Hibernian Property Co. Ltd v. Secretary of
State for the Environment (1973) 72 L.G.R. 350: the relevant question is not whether
the concealed information did prejudice the applicant but whether there is a risk that
it might have do.nc so; see also Fairmount Investments Ltd v. Secretary of State for the

Environment [1976] 2 All E.R. 865.

96. In Ceylon University v. Fernando [1960] 1 W.L.R. 223, hostile witnesses and the
‘accused’ were questioned separately; he claimed that failure to enable him to con-
front those witnesses constituted a denial of natural justice; held, the hearing was fair,
but it might have been otherwise if he had asked to interrogate those witnesses and his
request had been refused . cf., however, R. v. Gaming Board (note 95).

Judicial Review of Administrative Action : Principles 571

 is no rigid duty imposed by the common law to call every witness (pro-
vided that relevant evidence tendered is in fact disclosed for comment),
and a decision may be founded on
hearsay evidence without contravening
97
natural justice It has been said that a party who is entitled
.
to be heard is
’ prinia facie entitled to be legally represented 98 This implied right appears,
.

however, to be excluded in a number of situations where it has been found

that the circumstances are such that natural justice can be attained without
the necessity for legal representation 99
As far as proceedings before private
.

domestic tribunals are concerned the situation seems to be that tribunals

are regarded as having a discretion whether or not to allow counsel or a
solicitor, a discretion which they should exercise in favour of the applicant

if his reputation or livelihood is at stake 100 .

In some situations an oral hearing

conducted by a small committee or
is

tribunal but the decision is made by a larger body. The general rule (which
does not apply with the same degree of force to decisions by Ministers and
government Departments ) 101 is that he who decides must also ‘hear’. This
implies that those who listen to theevidence and make recommendations
must deliver to the deciding body an adequate report of the evidence and
submissions if that body is to discharge its obligation to ‘hear’ as well as
determine the issue 102 .

Conclusion

The rules of natural justice are often described as ‘fair play in action’.
97. See, for example, Miller ( T.A .) Ltd v. Minister of Housing and Local Government
[1968] 1 W.L.R. 992.
98. Sec A\ v. Assessment Committee of St Mary Abbots Kensington [1891] 1 Q.B.
,

378, and Lett v. Greyhound Racing Association [1969] 1 Q.U. 125.

99. Fraser v. Madge [1975] 1 W.L.R. 1132 (prisoner on disciplinary charge not
entitled to legal representation), and see Maynard v. Osmond [1976] 3 W.L.R. 711
C.A. (Police Discipline Regulations prohibiting legal representation for lower ranks
on disciplinary charges not ultra vires).
100. Sec the inconclusive litigation in Rett v. Greyhound Racing Association Ltd
[1969] (above); ibid. (No. 2) [1970] 1 Q.B. 46 (Lyell J.); [1970] 1 Q.B. 67 (C.A.)
(whether trainer threatened with loss of licence was entitled to legal representation at
oral hearing). Eventually, the G.R.A. agreed to allow him to be legally represented.
The Jockey Club had already made a like concession at disciplinary hearings. But in
Enderby Town F.C. Ltdv. Football Association Ltd [\97l] Ch. 591 the Court of Appeal
held -in a case where a domestic tribunal had imposed a fine -that denial of inde-
pendent legal representation was not a breach of natural justice.
101. Arhdgc's case (above).
102. Jeffs v. New Zealand Dairy Production & Marketing Board[\961] 1 A.C. 551.
This decision has important implications for university disciplinary bodies. But
sec

R. v. Race Relations Board\ ex p. Selvarajan [1975] 1 W.L.R. 1686

(where Board
was held to be under an obligation to act fairly but subject to that obligation was
master of its own procedure; on the facts it is difficult to say that the Board heard the
complaint).

572 Administrative Law

 During the last few years the courts have veered away from conceptual
reasoning and strict textual analysis and have come to place heavy em-
phasis on the duty of administrators to ‘act fairly’.
In some judgments this duty is understood to mean something wider than
a duty to ‘act judicially ’ according to naluial justice. Sometimes diffeient
judges use the same term to convey different ideas, or different terms to
convey the same idea 103 All this makes the Jaw more uncertain - not least
.

because ideas of fairness vary and the range of factual situations in ad-
ministrative law is wide - and uncertainty invites lawyers to advise clients
to try their luck in the courts. And some have been lucky. But why should
it be necessary to use this concept of a duty to act fairly? After all, the
rules of natural justice arc flexibleand adaptable; they impose no more
than bare minimum standards of procedural fairness 104 There are perhaps .

two reasons why some judges tend to prefer to talk of a duty to act fairly.
The first is the old idea that a duty to ‘act judicially’ in accoi dance with
natural justice arises only when the functions being performed are essen-
tially of a ‘judicial’ character 105 The second is that judges occasionally feel
.

that natural justice is not really flexible enough to accommodate certain

situations - for instance, the immigration officer who is trying to decide

whether the ‘immigrant’ in front of him is over sixteen, or whether his
avowed intention of coming only for a short holiday is genuine, or whether
he has adequate means; or the magistrate who is asked to condemn food
as being unfit for human consumption 106 And take the following case. A
.

council has power to increase the number of taxi licences. The town clerk
assures bodies representing existing licence-holders that they will be con-
sulted if any increase is contemplated. A sub-committee of the council
recommends graduated increases after having heard the case put by the
existing licensees through legal representatives. But an undertaking is then
given in the council, and confirmed by the town clerk, that there will be
no increase at all till forthcoming legislation has been passed. Soon after-
wards the council is advised that this undertaking is an improper fetter on
its discretion
107
. A
new decision is taken to make an accelerated increase;
103. See, for example. Re H.K. (an Infant) [1967] 2 Q.B. 617; Rc Pergamon Press Ltd
[1971] Ch. 388; R. v. Race Relations Board, ex p. Seharajan [1975] 1 W.L.R. 1686.
104. Nor do they require that decisions be right or even just, or that reasons be given
for decisions, or that proceedings be conducted in public, or that a record of the pro-
ceedings be maintained, or that there should be a right of appeal.
105. Sec, for example, y. Keela University [1971] 1 W.L.R. 487 at 493-5; Bates
Glynn
v. Lord Hailsham W.L.R. 1373 at 1378.
[1972] 1

106. See, for example, Re H.K. (above) Re Mohamed Arif (an Infant) [1968] Ch. 643
;

R. v. Chief Immigration Officer Lympne Airport ex p. Amrik Singh [1969] 1 Q.B. 333;
, ,

R. v. Home Secretary ex p. Mughal [1974] Q.B. 313; R. v. Birmingham City Justice,

,

ex p. Ch/is foreign Foods (Wholesalers) Ltd [1970] 1 W.L.R. 1428.

107. Sec p. 576.

Judicial Review of Administrative Action : Principles 573

 no real opportunity is afforded to the existing licensees toargue against
this change of policy. The Court of Appeal holds that in the circumstances
the council has acted ‘unfairly* and prohibits it from acting on its new
resolution until it has entertained representations from the parties
108
affected .

Maybe the court coulcfhave arrived at the same result by stretching the
rules of natural justice and saying that the council has failed to ‘act
judicially*. But it was certainly easier for them to confine themselves to
holding that the council had failed to observe its implied duty to act fairly
in arriving at an ‘administrative’ policy decision. The crux of the problem
for lawyers advising their clients today is the inability of the Court of
Appeal to agree either on any consistent policy of decision making, or,
more disturbingly, on the meaning of the terms which they use to describe
‘natural justice’ and ‘the duty to act fairly*. Although on balance the trend
seems to be away from a classification of functions, with only judicial func-
tions attaching an obligation to observe the ‘rules’ of natural justice, to-
wards an obligation on all decision makers to act fairly in the circum-
stances , 109 lapses into the old terminology are not infrequent and tend to
110
confusion .

*
A duty to act fairly is not restricted to procedural matters. Unfairness is

a form of abuse of discretion - a matter considered in the pages that

follow.

Discretionary powers 111

General
112
As we have noted , discretion implies power to choose between alterna-
*
tive courses of action. If X applies to a London borough council for a
v licence to open a massage establishment, the council may grant the licence
unconditionally or subject to such conditions as fit to impose, or it thinks
refuse the application. But not unlimited; and it must
its discretion is
*
exercise a genuine discretion in each individual case. Thus, it has an im-
plied duty not to refuse the application on legally irrelevant grounds (for
example, that X
is a Jehovah’s Witness) or to attach legally irrelevant

conditions to the grant of a licence (for example, that shall employ only X
108. R. v. Liverpool Corporation ex p. Liverpool Taxi Fleet Operators' Association
[1972] 2 Q.B. 299.
109. See, for example. Maxwell v. Department of Trade and Industry [1974] Q.B.
523 ; R. v. Home Secretary ex p. Mughal (above, note 106).
,

110. See R. v. Race Relations Board, ex p. Selvarajan (above, note 102) and (1976)
\

39 Mod L: Rev 342.

. .

"•
111: de Smith, op. cit., ch. 6.
112..p. 517 above.

/ 574;. Administrative Law '

 ?

persons resident in the borough); nor must it adopt a rigid rule

not to
grant any new
applications for licences irrespective of the merits of the
individual case. If no appeal lay from it$ decisions, would be entitled X
to go to the High Court for an order of mandamus to compel it to perform
its public duty. Mandamus would lie not to compel the council to give him

a licence but to exercise its discretion according to law.

In fact mandamus is unnecessary, for an appeal against the merits of the
decision lies to a magistrates’ court. If the magistrate wrongfully refuses to
entertain the appeal at all, he has declined jurisdiction in breach of his
public duty and mandamus will issue to him. If he listens to submissions
and then erroneously dismisses the appeal, the question might arise on an
application for mandamus whether he had wrongfully declined jurisdiction
or made an error of law on a matter within his jurisdiction; in this context
the answer is unimportant, for an appeal will lie to the Divisional Court by
case stated. In arriving at his decision, he can substitute his own opinion
for that of the local authority, giving due weight to the council’s knowledge
of local conditions. Indeed, he has a legally enforceable duty to exercise an
independent discretion. 113
It is fairly unusual to provide a full right of appeal to a court against the
merits of a statutory discretionary decision. Judicial control of the exercise
of discretion is normally limited to two questions: Has the discretion been
exercised at all? If so, has it been exercised according to law?

Failure to exercise a discretion

1. The general rule is do so, an

that, unless expressly authorized to
authority cannot sub-delegate powers to another person or body:
its

delegatus non potest delegare Application of this principle gives rise to

.

a number of difficult problems - for example, what exactly is meant by

‘delegation’ 114 - which we need not pursue. But it is not hard to illustrate
the application of the general rule. A local authority empowered to issue
cinema licences subject to conditions cannot validly impose a condition
that no film shall be exhibited unless approved by the British Board of
Film Censors; 115 it must preserve a residual discretion to override the
rulings of the Board in an individual case; otherwise it will be held to have

113. Sagnata Investments Norwich Corporation [1971] 2 Q.B. 614. The same
Ltd v.

principles apply to the Crown Courthearing an appeal from a magistrates’ court.

114. In general, the rule against sub-delegation does not preclude powers vested in
Ministers from being exercised on their behalf and in their name by departmental
officials. See also pp. 181, 340.
Dubowski [1921] 3 FC.B. 621. But see R. v. Greater London Council ex
115. EUis v. ,

p. Blackburn [1976] 1 W.L.R. 550 (authority may adopt policy of approving all films

passed by the British Board of Film Censors unless a specific objection is made).

Judicial Review of Administrative Action: Principles. 575

abdicated from its statutory duty to exercise its own discretion. 116 Again,

in deciding an appeal, Minister X

must not dispose of the matter solely on
the basis of Minister Y’s policy; otherwise the decision becomes Minister
117
Y*s.

2. One authority cannot lawfully act under thedictation of another unless

the other a superior in the administrative hierarchy or is empowered by
is

law to give instructions to it. 118 Secretaries of State are expressly em-
powered to 'give certain instructions to road and air transport licensing
authorities although they are largely independent bodies. 119

3. An authority must not

so fetter its own discretion by self-created rules
as to preclude itselffrom applying its mind to the merits of an individual
case before it. The borough council, in our hypothetical illustration, could,
however, adopt a general policy of not granting any further massage
establishment licences for the time being (because, for example, some of
these establishments had been improperly conducted), provided that it was
prepared to make an exception in a particular case. 120 It must keep its mind
ajar. But an authority entitled to take general considerations of national
policy into account may be entitled to refuse to consider any application
belonging to a particular class. For example, the Home Secretary may
validly instruct immigration officers not to admit any alien wishing to enter
the country as a student member of a cult which he deems to be harmful
to the .public welfare. 121

4. An authority cannot validly bargain away, or otherwise undertake not

to exercise, powers vested in it for the purpose of fulfilling an important
public purpose. As we have noted, 122 a local authority cannot disable itself
from making a particular by-law or revoking a grant of planning per-
mission; and in general public bodies cannot be estopped from exercising

116. Mills v. L.C.C. [1925] 1 K.B. 213.

117. Lavender ( H .) and Son Ltd v. Minister of Housing and Local Government [1970]
1 W.L.R. 1231 (planning appeal dismissed because Minister of Agriculture always
opposed such development). See also Ratnagopal v. Att.-Gen. [1970] A.C. 974.
118. See Laker Airways Ltd v. Department of Trade, The Times, 15 December 1976,
C.A. (Minister cannot use power to advise authority, to reverse its decisions), and
see Tameside , p. 580.
119. Transport Act 1968, s. 59 (2); Civil Aviation Act 1971, s. 4(3).

ofLondon Authority, exp. Kynoch [1919] 1 K.B. 176.

120. See, for example, R. v. Port
See also Lavender's case (above) ; Stringer v. Minister of Housing and Local Government
[1970] 1 W.L.R. 1281; Sagnata case (note 113, above); Cumings v.
Birkenhead
Corporation [1972] Ch. 12 (allocation of pupils to denominational schools); British
Oxygen Co. v. Board of Trade [1971] A.C. 610 (policy on investment grants).
121. See Schmidt v. Home Secretary [1969] 2 Ch. 149.
122. p. 396. See also Stringer case (above).

576 Administrative Law

 their powers by erroneous assurances given to members of the public 123 .

In matters of national policy, the Crown cannot fetter its own freedom to
act for the public good 124 But these rules are easier to formulate than to
.

apply in practice. Considerations of fairness to individuals who have been

misled may influence a court’s decision in their favour 125 .

Abuse of discretion
Some discretionary powers are absolute in that the propriety of the
grounds on which they have been exercised cannot be canvassed in the
courts ; the only control is political. This is probably true of the exercise
of prerogative powers; and of statutory powers while they are subject to
proceedings in Parliament 126 In practice it may also be true of statutory
.

powers where the element of national policy looms very large, or in time
of war or serious emergency. Before a system of immigration appeals came
into force, was also substantially true to say that executive regulation of
it

the admission and deportation of aliens was unrcviewablc 127 .

Nevertheless, all statutory powers must be exercised in good faith and

to promote the objects of the enabling Act. Statutory discretions are
potentially reviewable on these grounds at the instance of a perse;;
aggrieved by their exercise. Bad faith - the intentional misuse of power
for extraneous motives - may be virtually impossible to establish if the
repository of the power is a Minister. But misuse of powers in good faith
- by using them for an unauthorized purpose or without regard to legally
relevant considerations or on the basis of legally irrelevant considerations -
need not be so difficult to prove. If a power explicitly granted for one
purpose is in fact used for a different purpose, the courts ought to pro-
nounce the administrative act invalid 128 If such a power is used to achieve
.

another, unauthorized, purpose as well 129 the courts may apply various
,

tests to determine the validity of the end-product - for example, what was
the ‘dominant purpose ’, 130 or the ‘true’ purpose? or was the exercise of
power a colourable sham? or has the purpose for^which the power was
123. On assurances given by Crown
servants, see Howell v. Falmouth Boat Con-
struction Co. [1951] A.C. 837 849 (contrast Robertson v. Minister of Pensions
at 845,
[1949] 1 K.B. 227). For local authorities, see now pp. 387-90.
124. Rederiaktiebolaget Amphitrite v. R. [1921] 3 K.B. 500; and see pp. 601-2.
125. As in the Liverpool Corporation case (pp. 573-4).
126. cf. the Boundary Commission cases; pp. (236-8).
127. As in Ex p. Venicoff [1920] 3 K.B. 72; Schmidt's case (above); Soblen's case
[1963] 2 Q.B. 243.
128. See, for example, Sydney Municipal Council v. Campbell [ 1925] A.C. 338.
129. For example, Westminster Corporation v. L. & N.W. Rly Co. [1905] A.C. 426
(power to construct underground public lavatories validly exercised though a subway
for non-stopping pedestrians was built).
130. If the courts had asked themselves this question in the Sobleti case (above) the
result might have been different. See pp. 417-19.

Judicial Review of Administrative Action : Principles 577

granted been substantially fulfilled ?
131
If the statutory purpose has not been
spelt out, the courts read implied limitations into an ostensibly
may
133
unfettered grant of power. 132 As was pointed out in an earlier chapter,
the courts are nowadays reluctant to hold that an administrative authority
is the sole judge of the legality of the purpose for which it exercises a dis-
cretionary power.They may interpret a statute restrictively, relying if
necessary on common-law presumptions of legislative intent; and they
may draw adverse inferences from the conduct of the administrative
authority. 134
Perhaps the most outstanding recent example of judicial activism in this
fieldof the law was the decision of the House of Lords in Padfield v.
135
Minister of Agriculture (1968). Under a statutory marketing scheme, the
Milk Marketing Board fixed prices to be paid to producers in each of
eleven regions in England and Wales. Producers from the south-east region
wanted an increase in the basic price paid to them by the Board. They
could not get a majority on the Board for their view. But under the Act
they could, and did, make a complaint to the Minister. The Act provided
that, ‘if the Minister ... so directs’, a committee was to be appointed to
investigate and report on such a complaint. The Minister refused to
appoint a committee. He claimed that he had a free discretion to do as he
131. For example, Asher v. Secretary of State for the Environment [1974] Ch. 208
(Minister had statutory power to appoint a housing commissioner to carry out de-
faulting council’s functions, or to direct an extraordinary audit to be carried out; held,
provided he acted in good faith his decision to direct an audit could not be questioned -
even if he had in mind that a consequence of the audit could be disqualification of the
councillors).
132. For example, R.Paddington & St Marylebone Rent Tribunal ex p. Bell London
v. ,

& Provincial Properties Ltd [1949] 1 K.B. 666, as explained in R. v. Barnet & Camden

Rent Tribunal, ex p. Frey Investments Ltd [1972] 2 Q.B. 342 (local council could not use
its power to refer contracts of letting to a rent tribunal for the purpose of using the

tribunal as a general rent-fixing agency irrespective of the circumstances of individual

cases).
133. pp. 338-40.
134. See Congreve v. Home Office [1976] Q.B. 629 (where the effect of a finding
of maladministration by the Parliamentary Commissioner for Administration on the
validity of an administrative act is discussed).
135. [1968] A.C. 997. This decision, though overshadowed by Conway v. Rimmer
[1968] A.C. 910 (pp. 610-13) may have been equally important, cf., however,
Westminster Bank Ltd v. Beverley B.C. [1971] A.C. 508 (local authority refused a bank
planning permission to erect a building under Act X; if it had granted permission,
it would have had to pay compensation later under a road-widening scheme to be

undertaken in pursuance of Act Y when it demolished the building; held, avoidance

of payment of compensation by using powers to refuse consent under Act X did not
render its decision an unlawful abuse of power) and see Hoveringham Gravels Ltd v.
Secretary of State for the Environment [1975] Q.B. 754. Contrast Hall & Co. v. Shore-
ham-by-Sea U.D.C. (note 142) and R. v. Hillingdon L.B.C., ex p. Royco Homes Ltd
1974] Q.B. 120.

578 Administrative Law

 thought But he was induced to give reasons for his refusal: the com-
fit.

plaint raised issues affecting other regions; he would be expected to im-

plement the report of such a committee, and this could lead to political
dillicultics. The House of Lords held that the Minister had had regard
to
irrelevant considerations and had failed to promote the implied purposes
of the Act; and an order of mandamus was issued to direct him to consider
the appellants’ complaint according to law. 136
Thus the House of Lords subjected a wide executive discretion to judicial
standards. Padfield was hailed as the dawn of a new era of judicial review
showing that English administrative law did recognize a principle akin to
the French detoamcment de pouvoir or misuse of administrative power.
,

Moreover, misuse of power might be inferred from inadequate reasons or,

so the Law Lords observed obiter from the absence of any reason given in
,

rebuttal when an aggrieved person had established a primci facie case. Alas,
once again the courts have failed to demonstrate a consistent pdlcv Tn the
years that followed Padfield there appeared to be a retreat from the im-
plications of that decision. Either the terms in which the discretion was
granted or the circumstances of its exercise were held to preclude the
137
rigours of the Padfield approach or the complainant was required to
establish that the authority was motivated by an improper purpose, 138
But in 1976 two decisions re-asserted the willingness of the courts to
examine reasons advanced for an exercise of discretion, and to infer
misuse of discretion if no good reasons were advanced to support the
139
•decision of a Minister.
Most of the cases in which the courts have held that statutory dis-
cretions were in validly exercised have been concerned with licensing, the
regulation of land use by individuals, and the spending powers of local
authorities. In these contexts analogies with the ‘judicial discretions’ vested
140
in judges, magistrates and trustees have been invoked, and the usual

136. The Minister then set up the committee; the committee reported in favour of
the south-eastern producers; the Minister rejected the report.
137. See Secretary of State for Employment v. ASLEF
[1972] 2 Q.B. 455; In re
Golden Chemicals , The Times , 10 December 1976.
138. See Asher v. Secretary of State for the Environment [1974] Ch. 208 (but note
the political implications of this case and the above) ; and see Hoveringham Gravels
Ltd v. Secretary of State for the Environment (above, note 135).
139. Congreve v. Home Office [1976] 2 W.L.R. 291 ; Secretary of State for Education
v. Tameside M.B.C . [1976] 3 All E.R. 665, H.L.
140. See, for example,JR. v. Adamson (1875) 1 Q.B.D. 201 where magistrates em-

powered to issue a summons if they thought fit refused to issue one against persons
alleged to have conspired to break up a meeting held in support of the notorious
Tichborne claimant. It appeared that the magistrates’ reason was disapproval of the
object of the meeting. Held, mandamus should issue to them to exercise their discretion
according to law.

Judicial Review of Administrative Action : Principles 579

grounds of invalidity have been taking irrelevant factors into account and
disregarding relevant factors. The courts have seldom been deflected by
the fact that the competent authority has a statutory power to take such
action ‘as it thinks fit’ in relation to a particular matter. Local authorities
have long been held to owe fiduciary duties to their ratepayers 141 More .

recently, the courts have emphasized that conditions annexed by local

planning authorities to grants of planning permission and caravan site
licences must ‘fairly and reasonably relate’ to the permitted use 142 In .

deciding what restrictive standards they will impose on the exercise of an

apparently unfettered discretionary power, the courts exercise a broad and
not readily predictable discretion of their own. In one recent case 143 the
Court of Appeal took the view that the discretionary power of a local
authority to refer private tenancies to a rent tribunal would not be invalid
merely on the ground that an irrelevant matter had been considered or a
relevant matter disregarded; it would be invoked only if the reference were
arbitrary and capricious.
How far is unreasonableness to be regarded as an independent head of
invalidity? By exercising statutory powers unreasonably in such a way as
to cause undue interference with private rights, a public authority of
official may commit a tort (for example, nuisance, negligence, trespass,

false imprisonment). Here we are more concerned with cases where no

actionable civil wrong has been committed but an administrative act or
decision is challenged on the ground that it is so unreasonable as to be
ultra vires.
If a statutory power is expressed to be exercisable only where there exist
‘reasonable
141. grounds’, ‘reasonable cause’ or ‘reasonable suspicion’, the
courts can properly inquire independently whether these conditions
144
precedent were satisfied . And when the Secretary of State for Education
purported to give directions to a local authority in the exercise of his
power to intervene if the authority had acted ‘unreasonably’ the House

For example, Robertsv. Bopwood [1925] A.C. 578, and p. 407.

142. Pyx Granite Co. v. Ministry of Bousing and Local Government [1958] 1 Q.B.
554 at 572, per Lord Denning M.R., a dictum approved in many subsequent cases;
see, for example, Fawcett Properties Ltdv. Buckingham C.C. [1961] A.C. 636;
Kingsway
-
Investments (Kent) Ltd v. Kent C.C. [1971] A.C. 72. See also Ball&Co. v. Shoreham-by
Sea U.D.C. [1964] 1 W.L.R. 240 and R. v. Billingdon L.B.C. exp Royco Homes Ltd
.

[1974] Q.B. 120 for instructive examples of planning conditions held to

be invalid for
inadequate relationship to the purposes of the Act.
143. R. v. Barnet and Camden Rent Tribunal (note 132).
144. Nakkuda Ali v. Jayaratne [1951] A.C. 66 at 76-77, distinguishing Liversidgev .
Anderson [1942] A.C. 206. On Lord Atkin’s dissenting judgment in the latter case, see
R. F. V. Heuston (1970) 86 L.Q.R . 33. See further pp. 339, 505.

580 Administrative Law

of Lords held that the courts could inquire whether there was evidence
145
to support the Minister’s finding of unreasonableness.
If there is no express statutory obligation cast on the competent
authority to act reasonably, the courts may nevertheless impose minimum
standards of reasonableness. The Poplar councillors who voted to pay
unskilled employees a minimum wage of £4 a week in the early 1920s were
held to have exercised their discretion unlawfully by taking irrelevant
considerations into account and failing to have regard to relevant con-
siderations. 146 To say that they had acted unreasonably would come to the
same thing. But suppose that an authority vested with a wide discretion is
not deflected into the paths of irrelevancy; instead, it gives too much
weight to one relevant factor and too little to others, and ends by coming
147
to an unreasonable decision. In the Wednesbury Corporation case a local
authority, empowered to attach such conditions as it thought fit to the
grant of a permit for Sunday cinema opening, imposed a condition that
no child under fifteen should be admitted to a Sunday performance at all.
The condition was attacked as being void for unreasonableness. The Court
of Appeal held that it was valid; the courts should be slow to substitute
their own opinion for that of the competent authority, and only if the
condition were such as no reasonable body of persons could have imposed
should they be prepared to pronounce it invalid. This seems to suggest that
148
only a preposterous decision (‘something overwhelming’) could be
successfullyimpugned on its merits and a preposterous decision would in
;
149
any event probably be characterized as having been made in bad faith
or for an improper purpose. The test thus formulated appeared to be every
bit as narrow as that adopted to determine the validity of by-laws
alleged
150
to be void for manifest unreasonableness. However, cases on conditions
annexed to grants of planning permission and caravan site licences show
that the Wednesbury test of unreasonableness need not be a formality, and

145. Secretary of State for Education v. Tameside M.B.C. [1976] 3 All E.R. 665,
H.L. cf. Newcastle-under-Lyme Corporation [1965] 1 Q.B. 214.
Luby v.
146. Roberts v. Hopwood [1925] A.C. 578. See p. 393.
Associated Provincial Picture Houses Ltd v. Wednesbury
Corporation [1948]
147.
1 K. B 223.
Q.B. 76, where
At 230, per Lord Greene M.R. But see Clinch v. I.R.C [1974]
'.

148.
1
without the decision
Ackner J. is clear that unreasonableness could be established
Tameside , above.
being characterized as being made in bad faith. See also
149. But gross unreasonableness is not necessarily
synonymous with malice or
dishonesty*.Horrocks v. Lowe [1975] A.C. 135. .

150. Kruse v. Johnson [1898] 2 Q.B. 91 at 99-100.

From time to time local authority
manifest unreasonableness, though the test of
by-laws have been held invalid for
See, for example, Parker v. Bourne-
validity may appear similar to the Wednesbury test.
440; Repton School Governors v. Repton R.D.C.
mouth Corporation (1902) 66 J.P.

[1918] 2 K.B. 133.

Judicial Review of Administrative Action : Principles 581

 ithas been invoked as well as the by-law test to strike down clearly
unreasonable conditions. 151 In one recent case an attempt by a London
borough council to avoid having to impose higher council rents under the
Housing Finance Act 1972 by fixing the rateable value of one unoccupied
council house at an high figure was nullified. 152 But the courts
artificially
are, on the whole, still chary of holding the exercise of local authority
discretionaiy powers to be void for unreasonableness per se, especially if

they contain a significant policy element. 153

Again one must consider the importance of the contexts in which judicial
review operates. Despite the revival of judicial activism in the 1960s, it

would be hopeless to challenge the validity of a compulsory purchase order

or any other executive act or decision on the grounds of unreasonableness
per se if that decision could properly be based on broad considerations of
national policy. It would be necessary to establish improper purpose,
(possibly) the influence of irrelevant considerations or the disregard of
relevant factors, breach of natural justice, non-compliance with procedural
or formal requirements, or one of the other grounds for impugning the
viresof a policy decision. 154

151. For example. Hall's case (note 142 above); Mixnam's Properties Ltd v. Chertsey
U.D.C. [1965] A.C. 735; Hartnell v. Minister of Housing and Local Government [1965]
A.C. 1134.
152. Backhouse v. Lambeth L.B.C , The Times 14 October 1972.
. ,

153. See, for example, the Barnet and Camden case (p. 132) Re T. (A.J.J ) (an .

Infant) [1970] Ch. 688 (child custody decision); Re Lamplugh (1968) 19 P. & C. R. 125
(order to remove building on planning grounds); Manchester Corporation v. Connolly
[1970] Ch. 420 (possession order); Cumings v. Birkenhead Corporation [1972] Ch. 12
(allocation of pupils to secondary schools); Dowty Boulton Paul Ltdv. Wolverhampton
Corporation (No. 2) [1973] 2 W.L.R. 618 (appropriation of land for planning pur-
poses - a somewhat unsatisfactory decision, the grant of power having been conferred
‘
in objective * terms).
154. See, for example, VenicofTs case [1920] 3 K.B. 72 (deportation of alien);
Johnson’s case [1947] 2 All E.R. 395 (dicta) (compulsory purchase order); Robinson v.
Minister of Town and Country Planning [1947] K.B. 702 (planning scheme). There is no
good reason for supposing that the courts have shifted their position on such issues,
and to impugn a new town designation order or an order for the development of a site
as a new airport (see Essex C.C. v. Ministry of Housing and Local Government (1967)
66 L.G.R. 23) on the grounds of unreasonableness per se would seem to be a fruitless
endeavour. Padfield' s case (p. 578) shows how an unreasonable executive decision can
sometimes be successfully assailed by a more circuitous chain of reasoning. For
judicial acceptance of unreviewable discretion in other contexts, see Gallagher v. Post
Office [1970] 3 All E.R. 712; Aristides v. Minister of Housing and Local Government
[1970] 1 All E.R. 195; Re Fletcher's Application [1970] 2 All E.R. 527.

582 Administrative Law

 Chapter 27
Judicial Review of
Administrative Action;
Remedies
I

English law relating to judicial remedies against administrative bodies is

intricate than the main body of substantive law. We do not have
1
more
to probe fully into these matters, butsome of the references already made
to particular remedies may seem
and if no further explanation is
puzzling,
offered a student reading some of the cases may become still more puzzled.
Remedies may be statutory or non-statutory. Statutory remedies include’
the following:

1. As we have noted, from most statutory

Rights of appeal to the courts.
tribunals appeals High Court (normally the Divisional Court of
lie to the
the Queen’s Bench Division) or the Court of Appeal on points of law.
2. Statutory applications to quash, or restrain the making of, compulsory

purchase and similar orders, and decisions on planning appeals, on the

ground that the order or decision is ultra vires or that the applicant has
been substantially prejudiced by non-compliance with a procedural or
formal requirement on the part of the competent authorities. Applications
lie to a single judge of the High Court, 2 and must be brought within a brief
period, normally six weeks. The statutory procedure excludes the non-
statutory grounds for challenge.
Sometimes the classes of persons and bodies entitled to lodge an appeal
or bring an application to quash are specified by the Act. Unfortunately, it
is more common for the Act merely to afford these rights to a ‘person

aggrieved’, leaving it to the courts to interpret what this expression means.

Until recently the courts tended to adopt a restrictive interpretation requir-
ing that a ‘person aggrieved’ be some person or body whose existing legal
rights had been interfered with or upon whom a new legal obligation was
to be imposed.
3
Now the trend seems to be towards a more liberal policy.

1. de Smith, Judicial Review of Administrative Action (3rd edn). Part III.

2. In practice in the Queen’s Bench Division. See further, Order 94 of the Rules of
the Supreme Court.
3. Ealing Corporation v. Jones [1959] 1 Q.B. 884; Buxton v. Minister of Housing and
Local Government [1961] 1 Q.B. 278; see pp. 545-6.

Judicial Review of Administrative Action: Remedies 583

Loss of amenity has been held to render a householder a ‘person ag-
grieved’. An amenity society which was permitted by the inspector in his
4

discretion to make representations at a public inquiry has been found to

have a sufficient interest to qualify as a ‘person aggrieved’. 5 Judicial atti-
tudes towards the question of entitlement to obtain non-statutory remedies
have become correspondingly more flexible. 6 In some statutory contexts, a
‘person aggrieved’ must clearly be given a widermeaning than usual: if a
right of appeal lies from decisions of a licensing body,
an unsuccessful
applicant must obviously be a person aggrieved and entitled to appeal
although he has not been deprived of existing legal rights by the adverse
7
decision.

3. In some contexts statutory default powers, exercisable by Ministers to

enforce compliance with public duties, particularly duties imposed on local

authorities, may involve proceedings in the courts.
8

The main non-statutory remedies in administrative law are the preroga-

tive writ of habeas corpus, 9 the orders of certiorari, prohibition and

mandamus (still sometimes called ‘prerogative’ orders, because they were
10
formerly prerogative writs ), the injunction, the declaration, and damages.
Actions for damages will be touched on in the next chapter. Certiorari,
prohibition and mandamus were evolved by the courts of common law.
The injunction is an equitable remedy. The declaration is a nineteenth-

4. Maurice L.C.C. [1964] 2 Q.B. 362 (and hence entitled to lodge an appeal). See
v.

also Att.-Gen. of the Gambia v. N'Jie [1961] A.C. 617 at 634.

5. Turner v. Secretary of State for the Environment (1973) 72 L.G.R. 380 (where

there were indeed grounds for distinguishing Buxton's case (above, pp. 545-6) on the
facts, but it is nevertheless fair to say that the decision illustrates a more liberal
definition of ‘person aggrieved’).
6. See, for example, R . v. Liverpool Corporation [1972] 2 Q.B. 299 (prohibition;

standing accorded to organization representing competitors of prospective new

licensees); R. v. Hereford //., ex p. Narrower [1970] 1 W.L.R. 1424 (mandamus;
standing accorded to ratepayers complaining of breach of standing orders in tendering
for contracts) R. v. Lewes JJ., exp. Home Secretary [1973] A.C. 388
(H.L.) (certiorari;
;

standing accorded to Home Secretary and Gaming Board applying to quash witness
summons issued to private prosecutor against police officer); R. v. Blackpool JJ.> exp
.

Bcaverbrook Newspapers Ltd [1972] 1 W.L.R. 95 (certiorari awarded to newspaper

proceedings);
proprietors to quash magistrates’ order restricting reporting of committal
R v. G.L.C.y exp. Blackburn [1976] 1 W.L.R. 550 (quaere whether this decision marks
the death of* technical rules of locus standi at least
with regard to certiorari and pro-
hibition). And see notes 34, 45 and 46.

7. Stepney B.C. v. Joffe [1949] 1 K.B. 509.

8. For example, for an order of mandamus

or a declaration against the defaulter.
But such proceedings arc rare. On the effect of default
powers on the rights of indi-
viduals to go to court, see pp. 595-6.
9. Sec pp. 452-6.
10. For the meaning of the term ‘prerogative
writ’, and the history of the writs, see

de Smith, op. cit., Appendix L

584 Administrative Law

 century interloper, akin to an equitable remedy but not fitting into any
neat category.
Applications for certiorari, prohibition and mandamus are made to a
Divisional Court of the Queen’s Bench Division. Actions for declarations
and injunctions are brought before a single High Court judge, usually in
the Chancery Division. The possibilities of combining these proceedings,
if one is not sure of the appropriate legal remedy, are therefore limited. A
claim for damages may be combined with one for an injunction or a
declaration but not with the prerogative orders. Statutory applications to
quash cannot be combined with any other form of relief.
These facts alone suggest that the law of remedies needs to be ration-
alized. There ought not be so many different avenues to the courts. The
case for reform is strengthened by closer investigation. For the avenues are
tortuous; occasionally they run together, only to deviate unprcdictably;
sometimes they lead the litigant nowhere. As we shall sec, the Law Com-
mission has recommended limited reform.
Each of the remedies has developed separately, and most of them
originally had nothing to do with administrative law situations. Prohibi-
tionwas one of the earliest writs known to the law; it was used by the

common-law courts to prevent ecclesiastical courts from usurping their

jurisdiction. Certiorari was simply a royal demand for information: the
King, wishing to be made more certain (certiorari) of a matter, demanded
that he be informed by production of documents. It was used in the late
medieval period to bring up the record of an indictment, or of proceedings
in an inferior court, for trial or, if necessary, retrial and review. Certiorari
to remove for trial is now virtually obsolete. The modern form of cer-
tiorari, which emerged in the seventeenth century, is certiorari to quash
a decision on the application of a party aggrieved. The writ lay to minor
judicial bodies such as justices of the peace whose proceedings could not be
reviewed by writ of error. Prohibition came to serve much the same pur-
pose, except that it could issue only if there were something left to prohibit.
The two writs were the principal means by which the King’s Bench
(following the demise of the Star Chamber and the atrophy of the Privy
Council’s jurisdiction) exercised an inherent supervisory jurisdiction over
inferior tribunals. When they were invoked against local authorities and
government Departments in new situations, the High Court tended to get
into tangles because concepts relevant to superintendence over tribunals
did not always adapt themselves easily to control over administrative
bodies.
Of late the action for a declaration has encroached on the field formerly
reserved for certiorari. In some contexts non-statutory remedies have been
ousted by statutory applications to quash and restrain. Rights of appeal

Judicial Review of Administrative Action : Remedies 585

 overlap with certiorari. So does mandamus. Confusion has become worse
confounded by this wealth of remedies. However, a sense of proportion
must be preserved. Nowadays the courts try not to send a litigant with a
good case away empty-handed merely because he has not chosen the most
appropriate remedy.
Mandamus, to compel the performance of a public duty, proved to be
an adaptable remedy in public law, but it acquired certain peculiar charac-
teristics in its formative years and these still stunt its development. The
most flexible and interesting of the non-statutory remedies is the declara-
tion; its capacity for growth has not yet been exhausted. Closely associated
with the declaration is the injunction; but this is still pre-eminently a private'
law remedy, and it has not fitted easily into some administrative law
contexts where it might have been of value.
All these remedies are discretionary: save in very exceptional circum-
n person aggrieved cannot demand them as of right when he has
stances,
made out a case of unlawful action or omission. But the principles govern-
ing themanner in which the courts will exercise their discretion vary from
one remedy to another. Separate development here, as elsewhere, has been
an evil.

n
Certiorari will issue to quash an order or decision on any of the following
grounds:
1. Excess or want of jurisdiction. If part of an impugned order is quite
distinctand severable from the rest of the order, the invalid part may be
quashed, leaving the remainder intact.
2. Breach of the rules of natural justice.
3. Error of law on the face of the record.
4. Fraud, perjury or duress in procuring a decision.

As we have just noted, certiorari has become less important in admin-

istrative law because of the extension of alternative remedies. But within
its own field it has been fortified by the revival of the concept of review

for error of law on the face of the record, by the statutory enlargement
of the ‘record’, by the extension of duties to give reasons for decisions and
by the nullification of statutory formulae purporting to exclude judicial
review. 11
In the Electricity Commissioners case Atkin L J. said 12 that certiorari
and prohibition may issue to ‘any body of persons having legal authority

11. See pp. 556-7.

12. R. v. Electricity Commissioners [1924J 1 K.B. 171 at 204-5

. 586 Administrative Law

 to determine questions affecting the rights of subjects, and having the
duty '
to act judicially . .

A ‘body of persons’ included one person -for example, a Minister

‘Legal authority* was generally understood to mean authority derived
from statute or royal charter. In 1 967, however, it was held 13 that certiorari
would lie to a judicial-type body (the Criminal Injuries Compensation
Board) fulfilling public functions but created by purely administrative
action. 14 Decisions by a private non-statutory tribunal (for example the
committee of a club or trade union) are challengeable not by certiorari
but by injunctions and declarations.
The courts have sometimes refused to award certiorari and prohibition
against bodies which have no power to make a final decision; such bodies
15
are not ‘determining questions’. This is a difficult field of administrative
law, but one can assume that a court will be prepared to afford redress
today if satisfied that such a body (i) was obliged to observe the rules of
natural justice and (ii) broke them. 16 There is nothing at all to be said for
the decision of the Judicial Committee of the Privy Council in Nakkuda
Ali v. Jayaratne - that an official deciding to revoke a trading licence, upon
which a man’s livelihood depended, was not ‘determining a question’
17
affecting ‘rights’.
The requirement of a duty to ‘act judicially’ has never been interpreted
so strictly as to act as a complete bar to the remedy of certiorari or pro-
hibition. 18 The absence of any feature of a judicial proceeding, however,
coupled with a wide discretion exercisable on policy grounds, may incline
a court to hold that the act or decision impugned was ‘purely administra-
19
tive’ and not reviewable by certiorari or prohibition. It is now clear that

the courts no longer regard the absence of a duty to ‘act judicially* as an

obstacle to the exercise of their powers to award certiorari, and presumably
13. R, v. Criminal Injuries Compensation Board ex /?. Lain [1967] 2 Q.B. 864.
,

14. Though the Board is financed out of moneys provided by Parliament under the
Appropriation Act.
15. See, for example, Jayawardane v. Silva [1970] 1 W.L.R. 1365.
16. As in R. v. Kent Police Authority ex p. Godden [1971] 2 Q.B. 662 (prohibition
,

to doctor whose ‘decision* was not final).

17. [1951] A.C. 66 at 78.
18. See pp. 564-9; R. v. Birmingham City Justice [1970] 1 W.L.R. 1428 (where an
obligation to ‘act fairly* was held sufficient ground for the award of certiorari).
19. Certiorari was refused, ostensibly on these grounds, in Venicoff's case [1920]
3 K.B. 72 (deportation of alien); Nakkuda Ali v. Jayaratne (see above) and Parker's
case (revocation of licences); and Vidyodaya University Council v. Silva [1965] 1
W.L.R. 77 (dismissal of university teacher). These decisions are all explicable mainly
on the ground that the courts thought it inappropriate to import a duty to observe
natural justice. See also Aristides v. Minister of Homing and Local Government [1970]
1 All E.R. 195 (statutory application to quash dismissed on the ground that the

Minister had no duty to act judicially).

Judicial Review of Administrative Action Remedies 587

:
 20
prohibition The relevant questions are (i) whether the competent author-
.

ity has ‘legal authority to determine questions affecting the rights of

’ 21
sub-
jects and then (ii) whether the situation is appropriate for the exercise of
the power of the court. Lord Widgery C.J. has gone so far as to state that
he sees ‘no general legal inhibition on the use of such orders, although no
doubt they must be exercised only in the clearest cases and with a good deal
of care on the part of the court ’. 22
Locus standi to bring an application presents problems. It has often been
stated that any member of the public can institute proceedings; rulings to
this effect are to be found particularly in cases of prohibition for patent
jurisdictional defects. On the other hand, the more usual view is that
locus standi is limited to ‘persons aggrieved’, with all the ambiguities that
thisterm connotes. Probably the term should be understood to include any
person with a substantial personal interest to vindicate , 23 and members of
a local community who have a special grievance of their own by virtue of
membership of that community. In R. v. G.L.C., ex p Blackburn 24 the .

Court of Appeal held that Mr and Mrs Blackburn had a sufficient interest
as citizens of London and ratepayers to apply for prohibition in respect of
the exhibition of allegedly pornographic films. Lord Denning M.R. seemed
prepared to abandon all technical rules of locus standi,
and rely on the
courts’ discretionary powers to award certiorari and prohibition to check
frivolous applications.
The principles governing the discretion of the court to award certiorari
have partly crystallized. The courts exercise discretion in practice when
deciding whether the applicant had locus standi An application may be.

refused for waiver of or acquiescence in an excess of jurisdiction or a

breach of natural justice; or (exceptionally) because there is a more appro-
priate alternative remedy; or because the applicant had delayed unreason-
ably before instituting the proceedings, the normal time limit being six
months. The Aston University students who had been denied natural
justice lost their case on the ground of delay 25 Certiorari may also be
.

20. R. v. Hillingdon L.B.C. [1974] Q.B. 720 (certiorari will lie against a planning
authority in an appropriate case despite a statutory right of appeal to the Minister
and from him to the court). And see Ridge v. Baldwin [1964] A.C. 40 at 71-9.
21. R. v. Electricity Commissioners (above).
22. R. v. Hillingdon L.B.C. [1974] Q.B. 720 at 728.
23. See note 6.
24. [1976] 1 W.L.R. 550; cf. Durayappahv. Fernando [1967] 2 A.C. 337 (where the
mayor of a muncipal council in Ceylon which had been dissolved by a Minister in
breach of natural justice was held not to be a person entitled to apply for certiorari on
his own behalf).
, 25. JR. v. Aston University Senate , ex p. Roffey [1969] 2 Q.B. 538. And see R. v.
Herrod, ex p.' Leeds City Council [1976] 2 W.L.R. 18 (six months’ time limit held to
be a maximum not an entitlement).

588 Administrative Law

refused because to award it would serve no useful purpose, or because of
the applicant’s unreasonable behaviour. 26
Recently the Court of Appeal refused to award certiorari against a sup-
plementary benefit tribunal because in their view Parliament had intended
the benefit scheme to be administered with as littletechnicality as possible
according to the spirit rather than the letter of the relevant Acts. 27 Accord-
ingly the court suggested that even where an error of law was proved,
certiorari would be withheld in the exercise of the courts’ discretion unless
the decision was one which no reasonable tribunal could reach, or was out-
side the jurisdiction, or was arrived at in defiance of the rules of natural
justice.This mode of using the discretionary power to award certiorari
seems to create difficulties in predicting the types of tribunals or authorities
which will join the supplementary benefits tribunals as a protected class,
and in its retreat to a distinction between jurisdictional and non-juris-
dictional error.
Prohibition does not call for special discussion. In administrative law
it same bodies as certiorari, and on similar grounds, 28 though
will lie to the
a case for prohibition for error of law on the face of the record could
hardly ever arise because by the time that the error had become apparent
the order would nearly always be final. Occasionally certiorari and pro-
hibition may be awarded in conjunction - certiorari to quash a decision
already taken by a tribunal and prohibition to prevent the tribunal from pro-
ceeding or continuing to entertain other like cases outside its jurisdiction. 29
Mandamus, to compel the performance of a public duty, was evolved
by the King’s Bench early in the seventeenth century to restore persons to
public offices of which they had been unlawfully deprived. 30 For the next
two hundred years or more it enjoyed vast popularity as a means of
prodding inert and inept officials, magistrates and borough corporations
into fulfilment of their public obligations. A synopsis of the case law,
published in 1848, ran to 252 pages. But its importance was already
dwindling as local government was reformed; and it shrivelled as new
statutory remedies by way of appeal, complaint or objection to govern-
ment Departments, tribunals or courts, were introduced. For mandamus

26. Ex p. Fry [1954] 1 W.L.R. 730 (C.A.) (behaviour of fireman subjected to minor
disciplinary penalty).
27. R. v. Preston Supplementary Benefits Tribunal ex p. Moore [1975] 1 W.L.R.
,

624; see also R. v. Barnsley Supplementary Benefits Tribunal, The Times, 12 April
1976.
28. See especially the Liverpool and Godden cases, notes 6 and 16.
29. As in the Block Reference case (R. v. Paddington & St Marylebone Rent Tribunal
[1949] 1 K.B. 666; p. 578 above).
30. The leading case is Bagg' s case (1615) 11 Co. Rep. 93b.

Judicial Review of Administrative Action; Remedies 589

 was always an ‘extraordinary’ remedy, awarded only if no alternative
remedy was equally convenient or effective.
However, it will still lie in quite a wide range : ^ .*ad it is
awarded a little more frequently than a few year* ago.-'* I, may be issued
to compel a tribunal or a Minister or a local authority to entertain an
appeal or application in respect of which they have wrongfully declined
jurisdiction. It will lie to compel a body to carry out a duty to give reasons
for a decision or to give adequate reasons and to require a local authority
;

to produce minutes and accounts for inspection. If an authority required

to exercise a discretion in a matter fails to consider it on its merits because
it has improperly sub-delegated its powers or acted under dictation or
fetteredits own discretion by unauthorized promises or a rigid self-imposed

rule,mandamus will lie. It will also lie to order an authority which has
abused its statutory discretion (for example, by rejecting an application on
the basis of legally irrelevant considerations) to hear and determine the
matter according to law: see Padfield's case 32 Although on an application
.

for mandamus, the courts are not supposed to direct the competent
authority how to exercise its jurisdiction or discretion (for example, to issue
a licence to X), they may in effect achieve this result by holding that only
one avenue of approach to a particular case is legally permissible 33 .

Mandamus will not lie against the Crown, nor will it lie to a Crown
servant to order the performance of a duty owed only to the Crown; but
it will lie to a Minister to carry out a duty in the performance of which

a member of the public has a substantial personal interest.

There are important limitations on its availability. It cannot be obtained
(except in some instances on the application of a Minister) to compel
a local authority to provide a public service or a board running a national-
ized industry to discharge its primary duties. The courts might refuse to
issue such an order on a number of different grounds - that enforcement
could not be adequately supervised; that the matter is non-justiciable be-
cause judicial review has been expressly excluded or because the duty is
merely descriptive of a general administrative function; that there are
adequate alternative remedies; that no member of the public has locus
standi There has indeed been a marked (though somewhat erratic) tendency
.

to take a narrow view of the requirements of locus standi in mandamus

31. In the period 1964-6 only ten orders of mandamus were issued. But in 1969
eighteen orders were granted, seventy-six applications having been made for leave to
apply.
32. Padfield v. Ministerof Agriculture [1968] A.C. 997; p. 578.
33. See R. v. Derby'JJ.,exp. Kooner [1971] 1 Q.B. 147 (where ‘may’ was treated as
meaning ‘must’). See also R. v. Home Secretary ex p. Phansopkar [1976] Q.B. 606
,

(effect of court’s order was to force the Home Office to reconsider procedure concerning
the admission to the United Kingdom of wives of patrials).

590 Administrative Law

 =* general, an ar,-» .-;mt must show a direct and substantial personal

-
7"^ -• ^*'^,
,
ar -m t he performance
<.» .
1

mi * .i„ a .'pouficlcsai right

4
“jc c.-sc*. v M.u .*e .•

toits
pcilbrmaiicc. v*i id he mud Lave demanded performance and
been met
with a wrongful refusal, communicated directly or by conduct evincing
an
intention not to comply or a failure to understand what
compliance
entails.
There are several discretionary bars to the award of the order. Alterna-
tive remedies, unreasonable delay in making an application, the absence
of any useful purpose in issuing a judicial command, and the unacceptable
motives of the applicant areamong the most common. In a recent case 35
the Commissioners of Customs and Excise had allowed bookmakers to
pay a new and heavy licensing duty on betting premises by monthly
instalments. But the Finance Act 1969 had provided that the tax was
to
be paid in one sum or by two half-yearly instalments. There was no
statutory authority for the concession made by the Commissioners acting
under the responsible Minister’s instructions: Two bookmakers who had
paid their duties in accordance with the Act applied for mandamus to
compel the Commissioners to administer the Act according to law. The
court dismissed the application. Even assuming that the applicants had
prima facie a sufficient legal interest to maintain the proceedings, their
ulterior purpose was to put less affluent competitors out of business, and
this was not a purpose for which mandamus should be granted for non-
compliance with this statutory obligation.
Injunctions may be prohibitory (to restrain the commission or con-
tinuance of unlawful conduct) or mandatory (to compel the performance
of a duty). Mandatory injunctions are granted sparingly; 36 and in ad-
ministrative law they are of little practical importance. 37 An interim or
interlocutory injunction may be awarded as a matter of urgency ex parte
(on the strength of the plaintiff’s representations alone) to restrain the

34. For this reason it was doubtful whether the applicant in R. v. Metropolitan
Police Commissioner, ex p. Blackburn [1968] 2 Q.B. 118 (p. 371) could have obtained
a mandamus. Yet see R. v. Metropolitan Police Commissioner ex p. Blackburn (No. 3)
[1973] Q.B. 241 (where these doubts were muted); and note McWhirter' s case
(p.237) where a local elector was treated as if he had locus standi to compel the Home
Secretary to lay Boundary Commission reports before Parliament; see also R. y.
Hereford Corporation ex p. Harrower [1970] 1 W.L.R. 1424, note 6.
,

35. RCustoms and Excise Commissioners ex p. Cook [1970] 1 W.L.R. 450.

. v. ,

36. cf. Morris v. Redland Bricks Ltd [1970] A.C. 652 for a review of the principles.
37. See, for example, Att.-Gen. v. Colchester Corporation [1955] 2 Q.B. 207 (no
mandatory injunction to compel continued operation of ferry service); and see
generally Glossop v. Heston and Isle worth Local Board (1879) 12 Ch. D. 102. See,
however, Ghani v. Jones [1970] 1 Q.B. 693 (mandatory order to police to return
wrongfully detained Pakistani passports).

Judicial Review of Administrative Action : Remedies 591

commission or repetition of an allegedly wrongful
act which is liable to do
very s,erious harm, pending a full hearing of the case.
The injunction is essentially a discretionary private law remedy, awarded
where damages would not be a sufficient form of redress. It is also obtain-
able against public authorities and officials, other than the Crown and
Crown servants acting in that behalf, 38 not only for
actionable wrongs
(such as trespasses or nuisances) but also to restrain acts
which are ultra
vires but give no right of action for damages. For
example, if a local
authority spends money for a purpose outside its powers, it
is not com-
mitting a tort, but it canstill be restrained by injunction.
Who may sue?
The answer usually, though not uniformly, 39 given is that only the
Attorney-General, acting in his sole discretion, can institute such pro-
ceedings on behalf of the public for the vindication of their rights. He may
sue either on his own initiative or upon the information of a ‘relator’, who
is generally a local ratepayer; the proceedings are conducted in
the
Attorney-General’s name, though in relator actions he will not take an
active part. The Attorney-General may
also sue for an injunction to
restrain repeated breaches
of regulatory legislation where the sanctions of
the criminal law have proved inadequate. 40 He has also been awarded
injunctions against individuals breaking or proposing to break the criminal
law where the matter is very urgent, notwithstanding that the criminal
courts have not yet dealt with this issue. 41 It is still not clear in what
circumstances a local authority can take proceedings on behalf of the local
community, 42 but under the Local Government Act 1972 it seems that the
new local authorities will be entitled to do so under their own names. 43
Broadly speaking, a private individual cannot sue to restrain a ‘public
wrong’ unless his own legal rights have been encroached upon or he has

38. See Crown Proceedings Act

1947, s. 21, for this exception; pp. 606-7 below.
Birmingham Corporation [1955] Ch. 210 an action by a ratepayer
39. In Prescott v.
succeeded; the question of his locus standi was not raised. He was awarded a declara-
tion, but it can hardly be thought that the position would have been different had he
sought an injunction.
40. Att.-Gen. v. Harris [1961] 1 Q.B. 74 (Manchester flower-sellers outside a cemetery,
repeatedly breaking a local Act but preferring payment of the fines to desisting). Dis-
obedience to an injunction can lead to committal to prison.
41. Att.-Gen. v. Melville Construction Co. 0968) 67 L.G.R. 309 (tree preservation
Chaudry [1971] 1 W.L.R. 1614 (breach of fire safety law); Att.-Gen .
order); Att.-Gen. v.
v.Times Newspapers Ltd [1974] A.C. 273 (where publication of article would have been
criminal contempt of court).
42. Compare Warwickshire C.C. v. British Railways Board [1969] 1 W.L.R. 1117
(broad view) with Prestatyn U.D.C. v. Prestatyn Raceway Ltd [1970] 1 W.L.R. 33 and
Hampshire C.C v. Shonleigh Nominees Ltd ibid. 865 (declaration) (narrow view).
. , ,

43. s. 222. See Solihull M.B.C. v. Maxfern Ltd [1977] 1 W.L.R. 127.

592, Administrative Law

 44
suffered or threatened with special damage peculiar to himself. But in
is

the Enfield cases an invalid school reorganization scheme was successfully

45
challenged by parents who were ratepayers.
In 1973 the Court of Appeal accepted {obiter) that if in the last resort the
Attorney-General were improperly to refuse his consent to the institution
of proceedings, or should the circumstances render it impossible to obtain
such consent in time, a private individual offended or injured by the pro-
posed course of action would be allowed access to the courts. 46 Then in
47
Gouriet v. National Union of Post Office Workers the Court of Appeal
held that any citizen affected by a proposed breach of the criminal law
would be allowed access to the courts despite "the Attorney-General’s
refusal of his fiat even though the citizen might have no greater interest
than other members of the public. The majority held that while an interim
injunction would be granted the final remedy should usually be a declara-
tion. No direct order could be made against the Attorney-General.
All the four non-slatulory remedies mentioned up to this point are
coercive. Disobedience is a contempt of court. This is not true of declara-
tory orders.
The declaratory judgment is basically a twentieth-century judicial remedy
and has come to be used for a great variety of purposes in public and
private law. 48 Declarations can be awarded in almost every situation where
an injunction witi lie - the most important exception is that interim relief
cannot be granted by way of a declaration - and they extend to a number
of situations where an injunction would be inappropriate (for example,
because there is nothing to prohibit) or could not be obtained for other
reasons (for example, because the prospective defendant was the Crown).
The rules governing locus standi are unclear, 49 but in practice they seem
more liberal than in proceedings for injunctions. The plaintiff must assert

44. Boyce v. Paddington Corporation [1903] 1 Ch. 109 at 114. This general principle
was formulated in the context of public nuisance.
45. Bradbury v. Enfield L.B.C. [1967] 1 W.L.R. 1311; Lee v. Enfield L.B.C. (1967)
66 L.G.R. 195 (question of their locus standi left open). See also Lee v. Department of
Education and Science (1967) 66 L.G.R. 211 (declaration).
46. Att.-Gen. ex rel. McWhirter v. IB A [1973] Q.B. 629 (McWhirter sought to
prevent the showing on ITV of a film about Andy Warhol, alleging that the IB A
was in breach of their statutory duty to ‘satisfy themselves’ that the programme did
not offend against good taste and decency).
47. The Times 27 January 1977. Lord Denning M.R. thought that the court could
,

award a final injunction. An appeal is pending to the House of Lords.

48. See I. Zamir, The Declaratory Judgment See also de Smith, op. cit., ch. 10.
.

49. Decisions on locus standi range from the illiberal (see Gregory v. Camden L.B.C .

[1966] 1 W.L.R. 899) to the very permissive (for example, Prescott v. Birmingham
Corporation [1955] Ch. 210). The trend is now in general very permissive: see p. 584,
notes 5 and 6, and Gouriet above.

Judicial Review of Administrative Action : Remedies 593

a personal right or interest50 of which the law takes cognizance; and there
must be a genuine existing legal controversy which the courts have juris-
diction to resolve 51 The declaration is also a discretionary remedy; thus,
.

the courts may refuse a declaration if its award would serve no useful
52
purpose or if there are more appropriate alternative remedies .

Subject to these cautionary reservations, there are few limits to the

potential scope of declaratory relief in public law. For example, declara-
tions can be obtained that administrative orders or notices directly affecting
the plaintiff are invalid ; 53 that conditions annexed to a grant of planning
55
permission are invalid ; 54 that one’s products are exempt from tax ; that
56
one enjoying a special statutory or public status has been invalidly dis-

missed 57 or suspended 58 (though the courts will be very reluctant to make

a declaration entitling an ordinary employee to reinstatement 59 ); and that
60
the decision of a tribunal is invalid for excess of jurisdiction or breach of
61
natural justice or (possibly) that it is wrong in law, provided at least that
-the error is patent and the tribunal has power to rescind its determina-
tion 62 A bare declaration that natural justice had not been observed where
no other relief is asked for, and no decision exists to be quashed, will be

50. See Thome R.D.C. v. Bunting [1972] Ch. 470.

51. On
exclusiveness of alternative remedies see pp. 595-6. On declarations (and
injunctions) and legislative proceedings, see pp. 85, 312, 381.
52. SeeMaxwell v. Department of Trade and Industry [1974] Q.B. 523.
53. See especially Dyson v. Att.-Gen. [1911] 1 K.B. 410 (court had jurisdiction to
declare that a tax form requiring submission of certain particulars under threat of a
penalty was ultra vires). This was the effective starting-point for the rise of the declara-
tory judgment in administrative law. See Gouriet note 47 above.
y

54. For example. Hall & Co. v. Sho reham-by-Sea U.D.C [1964] 1 W.L.R. 240.
.

55. For example, Sebel Products Ltd v. Customs and Excise Commissioners [1949]
Ch. 409.
56. See Ridge v. Baldwin [1964] A-C. 40 (chief constable). And see now Malloch v.
Aberdeen Corporation [1971] 1 W.L.R. 1578, p. 568.
57. Vine v. National Dock Labour Board [1957] A.C. 488 (dock labourer); Hanson
v. Radcliffe. U.D.C. [1922] 2 Ch. 490 (schoolteacher).
58. Barnard v. National Dock Labour Board [1953] 2 Q.B. 18.

59. See, for example, Filial v. Singapore City Council [1968] 1 W.L.R. 1278. For an
exceptional case, see Hill v. Parsons ( C.A . ) & Co. [1972] Ch. 305.
60. For example, Anisminic Ltdv. Foreign Compensation Commission [1969] 2 A.C.

147. Semble the tribunal has a record that needs to be quashed, certiorari (in the
if

absence of a right of appeal) must be resorted to instead.

61. For example, Cooper v. Wilson [1937] 2 K.B. 309. Many decisions of non-
statutory domestic tribunals have been declared invalid on this ground.
62. This is a difficult question, still unresolved. See especially Healey v. Minister of
Health [1955] 1 Q.B. 221. The main difficulty lies in the principle that an erroneous
determination within jurisdiction is not invalid but binding till properly set aside. See
also Punton v. Ministry of Pensions and National Insurance (No. 2) [1964] 1 W.L.R.
226.

594 Administrative Law

 63
granted only in the most exceptional circumstances The declaration does .

not, however, have to be accompanied by a claim for consequential relief

(for example damages), nor is it necessary that such- relief be claimable at
all
64
. Indeed, it does not have to be a declaration of invalidity. A person
may obtain a declaration as to his nationality or marital status. Declara-
tionsmay be sought by one public authority to resolVe a legal dispute with
another (for example, as to financial obligations), or by a public authority
wishing to obtain a judicial pronouncement as to the scope of its own
65
powers or duties before it acts in relation to a specific matter And a .

declaration may be awarded as to the true construction of a statute or

other legal document which is the subject of a controversy between
66
parties .

Declarations granted by the courts may be formulated in a number of

different ways to meet the particular circumstances of a case. This is yet

another characteristic of the flexibility of declaratory judgments. If judicial

remedies in administrative law are simplified by amalgamation, this

important feature of declaratory orders must not be lost.

Effect of alternative remedies

We have made several references to the exclusion of judicial remedies in the
67
High Court by special statutory formulae or the provision of alternative
remedies. The latter type of exclusion is still important. Despite the pre-
sumption against excluding the right of access to the courts for the
68
determination of civil rights and obligations there is a well-known prin-,

ciple that the original jurisdiction of the superior courts is ousted where
a statute creates a new legal right or obligation and that same Act prescribes
69
a specific method for its enforcement The method of enforcement may
.

70
be by taking proceedings in an inferior court or tribunal or by complaint
9
63. See Maxwell s case (note 52 above).
64. This point is made clear by the relevant Rule of the Supreme Court (Order 15,

r. 16).

65. See, Central Electricity Generating Board v. Jennaway [1959]

for example.
1 W.L.R. where the Board obtained a ruling on the question whether it bad power
937,
(disputed by the landowner) to erect lines over private property. See also C.E.G.B. v.
Dunning [1970] Ch. 643.
66. This type of question is regulated by other Rules of the Supreme Court (for
example, Order 5, rr. 1, 4). Proceedings for this purpose are instituted by originating
summons.
67. See pp. 341, 553, 557-9.
68. See pp. 338, 553, 554, 558.
69. Barraclough v. Brown [1897] A.C. 615.
70. For example, an income tax tribunal ( Inland Revenue Commissioners v. Pearlberg
[1953] 1 W.L.R. 331), or an industrial tribunal ( Road Transport Industry Training
Board v. Wyatt {Haulage) Ltd [1972] 3 All E.R. 913). See also Departme :/ Health
and Social Security v. Walker Dean Walker Ltd [1970] 2 Q.B. 74.

Judicial Review of Administrative Action : Remedies 595

 or appeal to an administrative authority or by the
potential exercise of
administrative default powers.” Particularly in
declaratory proceedings or
on applications for mandamus, persons attempting to
obtain judicial
declarations of their rights or the enforcement of
public duties have often
found the courts refusing to entertain their claims for these
reasons. (In
Scots law it seems that the courts are more resistant to
this kind of argu-
ment.) But if it is possible to hold that the alternative
remedy is only
optional — for example, because pre-existing legal rights
are in issue72 or
because the prescribed remedy is inadequate or less convenient73
or if the
interests of justice call for intervention by the High Court, 74
the result may
be different. Moreover, even the courts hold that their original juris-
if
diction to determine the issue in the first instance has been excluded, they
can still exercise a supervisory jurisdiction after the appointed body or
tribunal has acted, so as to see that the law has been duly observed.
In
exercising that supervisory jurisdiction the court will sometimes
go on to
declare what the correct decision is or should have been. 75 And it was
recently decided that the statutory system of appeals in the Town and
Country Planning Act 1971 did not preclude the award of certiorari
against a planning authority
where certiorari was clearly the more effective
and convenient remedy. 76
The Law Commission has put forward modest proposals for reforms in
the system of remedies. 77 suggests that there should be introduced a new
It

form of procedure, ‘an application for judicial review’, under cover of

which an applicant could apply, to the court for any of the prerogative
orders or (and unlike the present situation) for a declaration or an in-

71. As with complaints about alleged breaches of duty by local education authorities
(Watt v. Kesteven C.C. [1955] 1 Q.B. 408; Wood v. Ealing L.B.C [1967] Ch. 364;
.

Cumingsv. Birkenhead Corporation [1972] Ch. 12 (though cf. Bradbury v. Enfield L.B.C.
[1967] 1 W.L.R. 131 1), or failure by housing authorities to provide accommodation for
homeless (Southwark L.B.C. v. Williams [1971] Ch. 734)), or failure by a local authority
to provide caravan sites for gipsies (Kensington and Chelsea L.B.C. v. Wells (1973) 72
L.G.R. 289). And see R v. Kensington and Chelsea L.B.C (1976) 74 L.G.R. 42.
. .

72. Pyx Granite Co. v. Ministry of Housing and Local Government [1960] A.C. 260
N
(property rights affected by planning legislation).
73. Ealing L.B.C. v. Race Relations Board [1972] A.C. 342 (council could test legality
of its housing policies in High Court instead of waiting to be sued by Race Relations
Board in county court).
74. Enderby Town F.C. Ltd v. Football Association Ltd [1971] Ch. 591 (dicta) (High
Court could give ruling on difficult and important point of law).
75. As in Cooper v. Wilson [1937] 2 K.B. 309 and the Anisminic case [1969] 2 A.C. 147
(declarations as to plaintiff’s rights consequential on declaration that decision of
tribunal was void).
76. R. v. Hillingdon L.B.C. [1974] Q.B. 720.
77. Report on Remedies in Administrative Law (Law Com. No. 73, 1976).

596 Administrative Law

junction. The court would have a wide discretion whether to allow an
application under such a procedure. This is disappointing for administra-
tive lawyers, but the Commission is not to blame; it had previously recom-
mended 78 that a Royal Commission should be set up to investigate many
aspects of administrative law, but the Government would have none of it,
and charged the Law Commission to look only at remedies.

78. Administrative Law (Law Com. No. 20, 1969).

Judicial Review of Administrative Action : Remedies 597

 Chapter 28
Crown Proceedings

Aspects of civil proceedings to which the Crown is a party have been

referred to earlier in this book. The Crown Proceedings Act 1947 made
substantial changes in the law. Archaic forms of proceedings advantageous
to the Crown were abolished; 1 various privileges and immunities of the
Crown were abridged; the Crown was at last made liable in tort. But on
a number of issues we have to look at the common-law and equitable
principles evolved before the Act and left unaltered by it. Some of these
principles are still remarkably obscure. New puzzles have been added by
the wording of certain provisions of the Act; some of these are highly
technical, and we shall not trouble to examine them in any detail 2 except
where they are of general practical importance.

Contracts3

Before the Crown Proceedings Act, claims against the Crown for breach
of contract had to be brought by way of petition of right 4 in the High
Court. The plaintiff was a ‘suppliant’; the procedure was unsatisfactory -
for example, the Home Secretary’s fiat had to be granted before proceed-
ings could be commenced - and too favourable to the Crown. The 1947
Act repealed the Petitions of Right Act 1860 and provided that claims
formerly brought by petitions of right (with the exception of proceedings
against Her Majesty in her private capacity) 5 were to be enforceable

1. In particular by section 13 of the Act and the First Schedule to the Act. For the old
law, see G. S. Robertson, Civil Proceedings by and against the Crown (1908). The author
of this treatise threw the discus at the first modern Olympic Games in 1896 in Athens,
and also recited a Greek ode composed by himself. He died in 1967, aged ninety-four.
2. The leading works are Glanville Williams, Crown Proceedings , P. W. Hogg,
Liability of the Crown and Harry
, Street, Governmental Liability. H. W. R. Wade,
Administrative Law (3rd edn), ch. 8, offers a lucid review of the main features of the law.
3. Colin Turpin, Government Contracts (1972).
4. Petitions of right also lay for recovery of land and chattels, for compensation
due under a statute (for example, the De Keyser case [1920] A.C. 508) and in quasi-
contract, but not for pure torts.
5. Which are maintainable only by petition of right and in respect of matters for

which petitions of right could be brought. Section 39(1) and the Second Schedule

598 Administrative Law

 :ugh ordinary ci \ i
i
proceed'* "S ugun .
‘->roco'vfi n S
g
,K
'
- - - V - - -

..*t, ova .or • *

. oi . . o sst:..

Y conti was icj t u»- .gci

How far does Crown liability m this spheio

authorities or private persons ?

1. The Crown, as a corporation sole at common law, has a potentially

unrestricted competence to enter into contracts, save in so far as it is
disabled from so doing by the terms of a statute or an overriding common-
law principle. Statutory corporations can contract only for purposes
within the defined scope of their authority.

2. If the Crown is to be able to discharge its obligations under a contract,

funds for this purpose must have been appropriated by Parliament. It is
sometimes said that the Crown is under no contractual liability at all in
6
the absence of such an appropriation. This view seems to be correct only
where a statute or the terms of a contract have expressly provided that the
supply of parliamentary funds shall be a condition precedent to the validity
7
of a contract with the Crown. Normally there is, or course, no such pro-
vision. The proper analysis of the normal situation appears to be that if
money is not made available to meet the Crown’s obligations, the contract
8
is not void but unenforceable against the Crown.

3. Crown contracts are made by agents acting on its behalf. The agent

having repealed the Petitions of Right Act 1860, it is arguable that such petitions must
now be brought under the still more archaic prc-1860 procedure. However, section
40(1) of the 1947 Act provides that nothing in the Act shall apply to proceedings against
the Sovereign in his or her private capacity. This may well be understood to mean that
the repeal of the 1860 Act does not include such proceedings. A petition of right under
the pre-1860 procedure may still be brought under the Colonial Stock Act 1877 to sue
for interest due from the Crown: Franklin v. Att.-Gen. [1974] 2 Q.B. 185, 205.
6. See especially Churchward v. R. (1865) L.R. 1 Q.B. 173 at 209; cf. Commercial
Cable Co. v. Government of Newfoundland [1916] 2 A.C. 610 at 617.
7. As was the position in Churchward's case, where a long-term government contract
for the carriage of mails was discontinued; the annual Appropriation Act indeed
expressly stated that no more money was to be applied towards payments to Church-
ward. S.O. No. 96 of the House of Commons now expressly provides that in govern-
ment contracts for the carriage of mails by sea, extending over a period of years, there
shall be inserted the condition that the contract shall not be binding till approved by a
resolution of the House.
8. See New South Wales v. Bardolph (1934) 52 C.L.R. 455 (Australia); Wilson, Cases
and Materials ,
For an incisive analysis, see Street. Governmental Liability, pp.
p. 626.
85-92. It is still not clear whether ‘unenforceable’ means unenforceable by the other
party in an action or merely that judgment against the Crown could be awarded but
not executed; if the latter is the correct interpretation, the position is the same as with
any other contract with the Crown; see p. 606 below.

Crown Proceedings 599

cannot be sued on the contract only the Crown, as principal, is 9
;
liable. The
agent’s authority to bind the Crown may be express or
implied. But what
if the agent has no such authority ? In private law the
principal will still be
liable if he has held the agent out as having the authority
he lacks; this is
called ostensible’ authority. In certain situations a principal
will also be
liable if the agent was acting in the course of his ‘usual ’ authority
although
that authority was neither impliednor ostensible. It is still unclear whether,
and if so when, the Crown is bound in such cases. Possibly the Crown will
be estopped from denying that its servant or agent has authority to bind it
in these situations, provided that (i) the other party could not reasonably
have been expected to know the limits of the agent’s authority; 10 (ii) the
limits of the agent’s authority were not defined by legislation 11 and (iii) the
Crown itself was not precluded from entering into the contract. 11 But
nobody can be sure of the legal position at the present time. It has been
held that if a Crown agent exceeds his authority and the Crown is not
bound, the other party to the ‘contract’ cannot recover damages against
the agent for breach of warranty of authority, 13 though the agent would be
so liable in private law.
4. As we have seen, 14 the Crown is in a different legal position from other
employers. The common-law rule is that civil servants hold office at the
pleasure of the Crown and cannot sue for damages for wrongful dismissal,
though they are legally entitled to be paid for the work they have done and

9. Macbeath
v. Ualclimand ( 1786) 1 T.R. 172.
In Robertson v. Minister ofPensions [1949] 1 K.B. 227 (not a case of contract) the
10.
Crown was held to be estopped from denying through one Department the binding
force of assurances (about entitlement to a service pension) which another Department
had given without authority but on which the other party had relied to its detriment.
(Followed in Re L (An Infant) [1971] 3 All E.R. 743.) Even today the authority of this
proposition is uncertain (cf. Howell v. Falmouth Boat Construction Co. [1951] A.C.
837).
1 1. Att.-Gen.for Ceylon v. Silva [1953] A.C. 461 (Crown not bound). In that case the

agent had held himself out as having the authority he lacked; the principal would
therefore not have been bound in private law according to the doctrine of ostensible
authority. It has nevertheless been suggested that the Crown might have been bound if
a superior officer had held the agent out as having authority; or alternatively that the
Crown should have been bound according to the doctrine of ‘usual’ authority. See
further Treitel [1957] Public Law 321 at 335-9; Griffith and Street, Principles of
Administrative Law (5th edn), p. 261, note 2; Colin Turpin, Government Contracts,
pp. 34-6; Hogg, Liability of the Crown pp. 125-9. There are wide differences of opinion
,

among commentators.
12. For example, because of a statutory restriction or the Amphitrite principle; see
below.
13. Dunn v. Macdonald [1897] 1 Q.B. 401, 555, a much criticized decision, but
applied in The Prometheus (1949) 82 Ll.L. Rep. 859.
14. pp. 189-91 and 196-7.

600 Administrative Law

 they can now obtain a statutory order for reinstatement or rc-engagcment
and an award of compensation for unfair dismissal. 15 Military servants of
the Crown cannot even sue for their pay.
5. In the Amplu trite case the rule that Crown servants are dismissible at
4
pleasure was ascribed to a general principle of law that the Crown cannot
by contract hamper its freedom of action in matters which concern the
welfare of the State’. 16 In that case, which arose during the First World
War, the Crown had assured the owners of a neutral ship that if it put into
a British port with cargo, it would be given a clearance and allowed to
depart. The ship was nevertheless detained and the owners brought a peti-
tion of right for breach of contract. It was held that there was no contract,
first because the assurance given by the Crown was to be construed as no

more than a statement of intent, 17 and secondly, because the Crown was
incapacitated from binding itself in the manner contended by the suppli-
ants, though it could have bound itself to perform an ordinary commercial
contract. The decision raises a number of problems, and some critics have
denied that any principle of law precluding a Government from fettering
its future executive action exists. Nevertheless, there is no doubt that such

a principle does exist; 18 the question is how to formulate it and determine

its scope. The Crown, like other public authorities, ought not to be able to

bind itself to abstain from exercising discretionary powers or performing

public duties in matters of primary importance. 19 If it were to purport to
bind itself in such ways, then the undertaking should be cither of no legal
effect at all or capable of being repudiated by the Crown when the national
interest so demanded. But the courts must power to determine when,
retain
for example, executive necessity justifies the Crown in repudiating an osten-
sibly binding contract. It is not reasonable to insist that engagements with
established civil servants must be subject to the Amphitrite principle - a
point originally (and albeit indirectly) conceded by the Industrial Relations
Act 1971 20 - nor, on the other hand, does it follow that all commercial
15. Employment Protection Act 1975, ss. 71-80. See above*, p. 191.
16. Rederiaktiebolaget Amphitrite v. R. [1921] 3 K.B. 500 at 503-4.
17. See also Australian Woollen Mills Ltd v. Commonwealth oj Australia [1956] 1
W.L.R. 11. But in Amphitrite the ingredients of a contract were present.
18. It has seldom been relied on by the Crown m reported cases, and in Robertson s
7

case (see above) Denning J. held that it was applicable only where there was an implied
term introducing it, but the principle was both recognized and applied in Board of
Trade v. Temperley Steam Shipping Co. (1927) 27 LI.L. R. 230 (chartcrparty of a
ship to the Government) and Crown Lands Commissioners v. Page [1960] 2 Q.B. 274
(requisitioning of land in wartime and for some years after the end of the war); see
especially Devlin L.J.’s judgment at 291-4.
19. See pp. 395, 577; and J. D. B. Mitchell, The Contracts of Public Authorities .

20. See now Trade Union and Labour Relations Act 1974, Sched. 1, para. 33 (as
amended by the Employment Protection Act 1975, Sched. 16, Part 111, paras. 33-4),

Crown Proceedings 601

contracts are excluded from its scope (for example, in time of grave
emergency). Where the principle does apply, the other party to the ‘con-
tract’ has no right to damages or compensation. It would be a useful law
reform to give the courts jurisdiction to award compensation (but not an
injunction or a decree of specific performance) to a party damnified by the
repudiation of a contract by the Crown on the grounds of executive neces-
sity in cases where the Crown was initially bound by the agreement.

6. The Government is a large-scale purchaser and is often able to impose

its own terms on a contractor. There is no special body of case law govern-
ing the standard term contract; the quasi-legislative character of such
contracts should be recognized and their terms subject to a measure of
judicial review.

Tort

Before the Crown Proceedings Act, the individual Crown servant was
personally liable as a tortfeasor even though he was purporting to act in
the execution of his official functions. But if sued he might not be able to
pay the damages or indeed the costs. The Crown was immune from
liability; the King could do no wrong and hence was immune from
liability for the wrongful acts of his servants although in the same cir-
cumstances other employers (including autonomous public authorities)
would have been liable. Ministers and superior officials were not legally
21
liable, either, unless they had authorized or otherwise participated in
the wrongdoing, in which case they were personally liable as joint tort-
feasors in their private capacities.
The .Crown would pay damages awarded against its servants for
often
torts committed of their employment. It would sub-
in the general course
mit spme claims to arbitration and abide by the result. If liability were
disputed, it would sometimes put up a Crown servant as a nominated
defendant though the real defendant should have been the Crown; and it
would stand behind him. In two cases, where no legal duty towards the
plaintiff had been owed by the nominated defendant, the courts disapproved
of this convenient practice; 22 these strictures expedited the introduction
of the Crown Proceedings Bill.
The Act preserved the personal immunity of the Sovereign. It did not
state in general terms that the Crown was to be liable in tort; instead, it
made the Crown liable in the same manner as a private person of full age
and capacity for specified classes of torts which, subject to certain excep-

21. Bainbridge v. Postmaster-General [1906] 1 K.B. 178.

22. Royster v. Cavey [1947] K.B. 204; Adams v. Naylor [1946] A.C. 543.

602 Administrative Law

 23
tions, cover the general field. The Crown is now liable for torts com-
24
mitted by servants or agents
its acting in the general course of their
functions, and for breach of the common-law duties owed by employers
and those owed by owners or occupiers of property. In cases of vicarious
liability (liability for actsof a servant or agent) there must also be a right
of action against the servant himself. Are public corporations administering
nationalized industries servants or agents of the Crown? Almost certainly
none of them is; the point is now usually made clear by statute, but even if
it is not, they have the requisite degree of autonomy in relation to Ministers

for them to be excluded from the category of Crown servants. 25 Certain

public corporations -for example, the Supplementary Benefits Com-
mission-providing social services may be in a more ambiguous position.
So may incorporated bodies promoting or regulating economic activity as
instruments of the central government. The Act providing for their consti-
tution and functions is not always clear bn this matter; a corporation may
be a Crown servant or agent for certain purposes but not others. The
question may assume practical importance only if the corporation is sued
and claims a special Crown immunity (for example, from injunctions) or if
the Crown is sued instead of the corporation because the latter lacks
adequate funds. In determining whether a corporation is a Crown servant
the court will scrutinize not only the constituent instrument but also the
degree of ministerial control over the corporation. 26
Section 2(6) has a curious look about it. It renders the Crown liable for
the acts or omissions only of such of its officers as are (i) appointed,
directly or indirectly, by the Crown and (ii) paid wholly out oi cer^-l
government funds. The main practical effect of this subsection was to
exempt the Crown from liability for acts of the police. 27 Under the Police
Act 1964, chief constables are now vicariously liable for the torts of police
28
officers. But section 2(6) leaves the Crown immune from liability for the
torts of borrowed ‘servants’.
The Crown is liable in tort for breaches of statutory duty in situations
29
where breach gives rise to a right of civil action. However, its position

23. Crown Proceedings Act 1947, s. 2. For commentaries, see note 2 above. Detailed
analysis not included in the text below.
is

24. ‘Agent’ was defined (s. 38(2)) as including an independent contractor (i.e. one
who was doing work for the Crown otherwise than as a servant). The term ‘officer’ of
the Crown includes a Crown servant. **

25. See especially Tamlin v. Hannqford [1950] 1 K.B. 18.

26. See generally pp. 121 and 213.
27. Assuming, of course, that they were officers of the Crown. See ch. 17.
28. s. 48. They are indemnified out of local funds.
29. For those situations a student should consult a textbook on the law of tort.
For a brief synopsis see de Smith, op. cit. (3rd edn), pp. 473-8.

Crown Proceedings 603

isnot quite the same as that of other public authorities on this matter. A
statutory duty will not be held to bind the Crown unless it does so expressly
or by a very necessary implication. 30 Moreover, the Crown will not be
on persons other than the Crown
liable unless the statute is also binding
and its officers; there seems to be no good reason for this limitation. On
the other hand, the Crown is liable for breaches of statutory duties imposed
on its servants; this goes beyond the liability of other public bodies.
The Crown is not, of course, liable in respect of acts of State or acts done
by virtue of the royal prerogative. 31 Section 11(2) of the Act provides that
where, in proceedings under the Act, it is material to determine whether

anything was properly done (or left undone) in the exercise of the pre-
rogative, a certificate given by the responsible Minister that the act or
omission was necessary for the defence of the realm or for training or
maintaining the efficiency of the armed forces shall be conclusive. The
exact effect of this provision, like so many other matters touching the pre-
rogative, obscure; the certificate will be conclusive of the facts stated
is

but cannot conclusively determine, as a matter of law, whether the act or

omission in question fell within the scope of the prerogative.
Under section 10 of the Act, no action in tort will lie against a member
of the armed forces who, while on duty, causes death or injury to another
member of the forces on duty or on land, premises or transport being used
for the purposes of the forces, provided that the responsible Minister
certifies that the death or injury was attributable to service for entitlement
to a pension. Nor is the Crown liable in these circumstances. Similarly, no
action will lie against the Crown for death or personal injury suffered by
a member of the a result of the condition of such land, premises
forces as
crash of
or transport, or equipment or supplies (for example, through the
a defective transport plane or the premature explosion of a shell or food-
of
poisoning in the cookhouse), provided that the appropriate certificate
pensionability is awarded. The right of civil action is barred even
though
32
in the end no pension is in fact awarded to the claimant.
tort for any
Section 9 excluded liability of the Crown and its officers in
telephone or telegraphic services, apart
default in connection with postal,
limited financial liability for wrongful loss or damage to
registered
from a
inland postal packets. This immunity was justifiable on
33 grounds of public
would probably encourage
policy; to introduce the principle of liability

30. See pp. 117-18, 119-20.

31 Sec ch. 4.

32. Adams v.War Office [1955] 1 W.L.R. 1116.

v. Post Office [1957] 2 Q.B. 352;
33. On the interpretation of this section, see Triefus
Building & Civil Engineering Holidays Scheme Management Ltd v. Post Office [1966]
1 Q.B. 247.

604 Administrative Law

 a great number of unmeritorious claims. Now that the Post Office has
ceased to be a government Department and has become a public corpora-
tion, section 9 has been replaced by sections 29 and 30 of the Post Office
Act 1969 which reproduce similar immunities.
The Crown is also exempt from liability for the acts or omissions of
persons discharging or purporting to discharge responsibilities of a judicial
nature or in connection with judicial process (section 2(5)). But for this
subsection (which is presumably intended to emphasize the independence
of the judicial function), interesting problems would arise in determining
whether a person performing judicial functions was a Crown servant, 34
35
Individual liabilityis not affected.

Subject to these exceptions, the tortious liability of the Crown is much

the same as that of local authorities 36 and other public bodies. In other
words, it is not set apart from the private law of tort. The doctrine of
‘sovereign immunity’, which in American law exempts governmental
bodies from civil liability for discretionary acts, forms no part of English
law. And, although in particular classes of situations liability without
fault may be attributed, 37 there is as yet no general principle of English
law that public authorities are liable without fault (as they are in France)
for damage caused by an exceptional risk created by a public activity.
Reasonable care has to be exercised in the discharge of statutory powers
and duties so as to prevent the occurrence of reasonably foreseeable
damage to private rights or unnecessary aggravation of such damage as
must inevitably be caused. But this general principle cannot be applied
mechanically without reference to the context. For example, it would be
futile for a farmer, whose fertile land had been compulsorily acquired
under statutory powers, to claim damages for trespass against the acquiring
authority on the ground that it was unreasonable to take his land. Even if
the jurisdiction of the courts to entertain such a claim were not ousted by
the provision of an exclusive alternative remedy (a-statutory application to
quash the order within a limited period), he would still have to show that
the order was not merely unreasonable but tainted with a vitiating defect.
And there is a range of intermediate situations. Recently the House of
Lords held, on a preliminary point of law, that the Crown would be liable

34. cf. Ranaweera v. Ramachandran [1970] A.C. 962 (P.C.). Clearly officers sitting
as members of a court-martial administering military law, and Crown servants such as
the special commissioners of income tax, are officers of the Crown exercising judicial
functions. Are judges of the Crown?
officers And which (if any) licensing authorities
exercise functions of a ‘judicial’ nature?
35. Sec p. 360.
36. cf. pp. 390, 397-8.
37. For example, under the rule in Ry lands v. Fletcher (1866) L.R. 1 Ex. 265 and in
certain cases of breach of statutory duty.

Crown Proceedings 605

 for negligence in respect of damage to private property done by borstal
boys while they were making their escape after the officers responsible had
faded to carry out their duty to exercise proper supervision over them; but
it seems that their Lordships would not have held the Crown liable if the

conduct of its officers had been in the nature of a mere error of judgment
in selecting a particular method of custodial treatment or in directing the
release of a detainee. 38

Procedure and evidence

Crown proceedings must be brought by or against an ‘authorized De-

partment’ -the Department concerned with the general field of conduct
in issue; or if none of the authorized Departments is appropriate or if it
is not clear which is appropriate, proceedings must be brought against the
Attorney-General. A
list of authorized Departments is published by the

Civil Service Department (section 17).

In general, the same periods of limitation apply to proceedings against
the Crown as against other persons. Damages and costs may likewise be
awarded against the Crown. However, execution of a judgment cannot be
levied against Crown property; this is not a matter of any consequence, for
the Crown does comply with judgments against it. Coercive orders - for
the specific restitution of land and property, for the specific performance
of contracts, and injunctions - cannot issue against the Crown; instead,
the court may make an order declaratory of the plaintiff’s rights (section
21(1)). Moreover, the court cannot grant an injunction against an officer
of the Crown if the effect of granting it would be to give relief against the
Crown which could not have obtained in proceedings against the Crown
itself (section 21(2)). Interpretation of the latter subsection presents diffi-

culties. It appears to preclude the award of an injunction against govern-

ment Departments, those public corporations which are Crown servants,
Ministers and other officers of the Crown for acts done in the purported
39
exercise of their statutory functions, save perhaps where the unlawful act

38’. Dorset Yacht Co. v. Home

Office [1970] A.C. 1004; and see dicta at 1031, 1037,
1049, 1065-9. Nor, it would the Crown have been held liable unless the
appears,
damage had been inflicted in the vicinity of the borstal and had been of a kind very
likely, to be perpetrated by escapees. See further, Hamson [1969] Camb. L.J. 273;

Semar [1969] Public Law 269. It may be actionable to cause direct economic loss by an
act. or omission prompted by improper motives: David v. Abdul Cader [1963] 1
WX-R. 834 (P.C.) (allegedly malicious refusal of a licence by local officer). See also
p, 397, note 94.
39. Merricks v. Heathcoat-Amory [1955] Ch. 567. See also Harper v. Home Secretary
[1955] Ch. 238, where the question was not firmly decided, cf. Hogg, op. cit., pp. 25-6,
putting the case for a more restrictive interpretation of section 21(2).

606 Administrative Law

 isnot merely ultra vires but also a tort, 40 in which qase an injunction
might
be awarded against an offending Crown officer in his personal
capacity if
the act was far removed from his field of lawful authority.
More liberal
interpretations are possible. The state of the law before the
Act was by no
means crystal clear. What is clear, unfortunately, is that where the courts
have no jurisdiction to issue a final injunction, they have no jurisdiction
to
issue an interim injunction either; and although a declaration
may be an
effective substitute for a final injunction (because the Crown will comply
with it) the courts do not issue interim declarations. 41 It would seem that
unless the Crown consents a specially expedited hearing of a declaratory
to
action, 42 a person aggrieved may be unable to invoke the
jurisdiction of the
courts as a matter of urgency to restrain the Crown or its
officers from
inflicting irreparable damage on private rights by unlawful
conduct.
A blanket exclusion of injunctive relief against the Crown and
its ser-
vants hard to justify. Mandamus (also a coercive remedy, disobedience
is

to which is likewise a contempt of court) will lie against a Minister

in his
official capacity on
the application of a person with a sufficient interest
in
the performance of the duty. So will an order of prohibition, and a
statu-
tory order to restrain the making or confirmation of a compulsory
purchase
order, these remedies are closely analogous to injunctions. The
arguments
against giving the courts a general jurisdiction to award injunctions
seem
to be (i) that injunctions cover a wider field than these classes of orders
and (ii) that the Crown through
its servants might find it necessary to

disobey the of the law in an unpredictable emergency and

strict letter
ought not to be impeded or embarrassed by an adverse court order. But
injunctions are discretionary and judges are not in the habit of ignoring
the existence of a grave national emergency. In several other Common-
wealth countries, injunctions can be awarded against governments and
their officers in their public capacities.

*
Crown privilege'

By section 28 of the 1947 Act the courts could make an order for discovery
of documents against the Crown and require the Crown to answer
interrogatories, but this new power was subject to important qualifications.

40. See, for example, J. R. Bickford Smith,Crown Proceedings Act 1947, p. 82.
41. Underhill v. Ministry of Food [1950] 1 All E.R. 591; International General
Electric Co. of New York v. Customs and Excise Commissioners
[1962] Ch. 784.
42. In Marsh ( Wholesale) Ltd v. Customs and Excise Commissioners
[1970] 2 Q.B.
206, where final declarations were claimed, the case was tried only three weeks after the
issue arose. In Lee v. Department of Education and Science
(1967) 66 L.G.R. 211,
judgment was delivered within three days of the institution of proceedings.

Crown Proceedings 607

Itwas not to alTect any rule of law about the withholding of any document
or refusal to answer any question on the ground that disclosures or
answers would be injurious to the public interest; nor was it to affect any
rules made to secure non-disclosure of the very existence of a document
if in the opinion of a Minister it would be injurious to disclose its
43
existence .

The first proviso referred to the broad rule laid down in Duncan v.

Cammell, Laird & Co.,"* propounding the common-law doctrine of Crown

privilege. The rule was not confined to proceedings to which the Crown
was a party. In Duncan's case dependants of men lost when the submarine
Thetis sank on its trials sued the shipbuilders for negligence. The plaintiffs

sought production of various documents in the possession of the de-

fendants. Some of these would in fact have revealed unique features of the
submarine which would, if openly divulged, have been of considerable
advantage to the enemy; the proceedings were brought during the Second
World War. The defendants, under Government instructions, objected to
their production, and the First Lord of the
Admiralty swore an affidavit to
the effect that he had considered the documents
and had formed the
to the public
opinion that their disclosure to anybody would be injurious
objection and declined even to inspect
interest. All the courts upheld this
Viscount Simon L.C., speaking for a unanimous House
the documents.
of generality. Documents
of Lords, stated the principle at a high level
judicial proceedings were not
otherwise relevant and liable to production in
produced if the public interest required that they be withheld. The
to be
objection to production should be taken
personally by the Minister m
he were unavailable, by the permanent
charge of the Department, or, if

Department. An objection properly taken should be accepted

head of the
injury to the public interest might
by the courts as conclusive. The test of
contents of the particular document
be satisfied by reference either to the
belonged to a class which, as a class, ha
or to the fact that the document
production. Examples of classes of documents which
to be withheld from
where disclosure would be mjurious
could properly be withheld were those
relations or the proper functioning
of
to national defence, good diplomatic
might well require a particular class
the public service. The public
interest
a public department o be P r °
tec ‘®
of communications with, or within,
the candour and completeness of s
from production on the ground that closed
were ever liable to be di
communications might be prejudiced if they
.’ 45 The same considerations
applied to oral
in subsequent litigation . .

Rules of the Supreme Court, Order 77,

r. 12(2).
43. See now
44. [19421 A.C. 624.
45. At 635.

608 Administrative Law

evidence of. the contents of such documents, 46 but they did not necessarily
apply to criminal proceedings.
It will be noted that ‘Crown privilege’, as thus formulated, was not

confined to those proceedings to which the Crown was a party. Indeed, the
principle was not so much a privilege of the Crown as an exclusionary rule
of evidence based on the public interest, of which the Minister was deemed
to be the sole judge if he expressed a view in the appropriate form ; but if
the Minister did not object, the judge himself ought to exclude evidence
contrary to the national interest.
Probably no modem rule of English law has attracted so much criti-

cism. 47 The had abdicated in favour of the Executive at the expense

courts
of the interests of litigants and the public interest in the due administration
of justice. And privilege was claimed as a matter of principle for most
classes of communications within and between central government Depart-
ments and many types of communications between Departments and out-
side bodies. In Ellis v. Home Office (1953), where a prisoner on remand,
who had been assaulted and severely injured by a mentally disturbed
patient in the prison hospital, sued the Crown for negligence, privilege was
successfully claimed for prison medical reports on the assailant; 48 the
action had to fail, and doubts were expressed by judges themselves whether
justice had in fact been done.
In 1956, and again in 1962 and 1964, administrative concessions were
announced: privilege would no longer be claimed for various classes of
documents, including those in issue in Ellis's case. The law was not
modified, but the basis of the broad rule in Duncan's case was being
questioned. Critics harked back to a Privy Council decision (disapproved
in Duncan's case) where it had been held that the courts had an inherent
power, exercisable in exceptional circumstances, to inspect documents for
which privilege had been claimed and to disallow the claim altogether if it
were clearly unreasonable. 49 The Scottish courts reasserted a somewhat
similar residuary power (denied in Duncan's case) to overrule a claim to
50
privilege if the interests of the administration of justice so demanded. In
the mid-1960s, courts in some Commonwealth countries rejected the
general rule laid down in Duncan's case. And the Court of Appeal, in three

46. See Gain v. Gain [1962] 1 W.L.R. 1469.

47. One of the best critiques is by Clark (1967) 30 Mod . L. Rev. 489. See also pp.
183-4 and 468.
48. [1953] 2 Q.B. 135. Privilege was also successfully claimed for documents affecting
international relations on an application for habeas corpus: SoblerC s case [1963]
2 Q.B. 243.
49. Robinson v. South Australia (No. 2) [1931] A.C. 704.
50. Glasgow Corporation v. Central Land Board 1956 S.C. (H.L.) 1 ; Whitehall v.
Whitehall 1957 S.C. 30.

Crown Proceedings 609

cases decided in 1964, 51 began to undermine the authority of the rule in
English law, declining to accept ‘the proper functioning of the public
service’ as a sufficient reason for withholding disclosure and affirming that
the court did have a reserve power, if dissatisfied with the Minister’s
reasons, to inspect and order disclosure. But the court refrained from
overruling the Minister’s claim in any of these cases.
In Conway v. Rimmer (1968) a probationary police constable had been
prosecuted for theft; the charge was dismissed, but he was dismissed from
his post soon afterwards. He brought an action for malicious prosecution
against his former superintendent and in the course of preliminary pro-
ceedings for discovery, the Home Secretary objected to the disclosure of
certain -reports relevant to the case. His objection was made in proper
form, particularizing the classes of documents into which they fell (con-
fidential reports on police officers and reports concerning investigation into
crime) and specifying that in his opinion the production of documents of
each class would be injurious to the public interest. The House of Lords
held 52 unanimously that the Minister’s assertion as to the effect of dis-
closure was not to be accepted as conclusive; that although Duncan' case
was on its own facts, the broader propositions for which
rightly decided
that case had been regarded as an authority were wrong; 53 that the courts
had a residuary power to inspect the documents in question privately in
order to determine whether the public interest in suppressing them out-
weighed the interests of parties to proceedings and the general public in
the unfettered administration of justice; and this power should be exercised
in the instant case. Having inspected the documents, their Lordships over-
ruled the Minister’s claim of Crown privilege and ordered disclosure.
This important decision 54 - the most striking example of judicial acti-
vism in administrative law since the war - left some questions unanswered.
Five separate judgments seldom elicit a clear-cut ratio decidendi Opinions .

differed on the criteria to be adopted by courts in evaluating claims to

Crown privilege, but it can be inferred that judges ought not even to call
for inspection of documents described as belonging to certain classes (for
example Cabinet papers, and documents concerned with national security
or diplomatic relations). Documents belonging to other classes (for ex-

51. Re Grosvetwr Hotel London

, (No. 2) [1965] Ch. 1210; Merricks v. Nott-Bower
[1965] 1 Q.B. 57; Wednesbury Corporation v. Ministry of Housing and Local Government
[1965] 1 W.L.R. 261.
52. [1968] A.C. 910.
53. If these propositions are to be regarded as part of the ratio decidendi in
Duncan's
case, then the House of Lords was newly asserted power to overrule
exercising its

its own binding precedents. Some judges and commentators have regarded those

propositions merely as obiter dicta We prefer the first of these opinions.

.

54. See Clark (1969) 32 Mod. L Rev. 142; Hogg, op. cit., ch. 3.
.

610 Administrative Law

ample, concerning the formation of policy, or methods used in the investi-
gation of crime) might be inspected but should not normally be disclosed 55 .

Official documents of a more routine nature would be inspected and, if

relevant, normally disclosed. It was still not clear what standards judges
should apply in balancing the possible injury to the public interest caused
by disclosure (or the prospect of disclosure) against the claims of the
administration of justice in an individual case; or what criteria or pro-
cedure should be used if a claim for privilege were to be raised before an
56
inferior court But there was no obvious reason for differentiating claims
.

on a ‘class’ basis from claims for privilege based on the contents of a par-
57
ticular document. It had already been held that a claim to exclude a
subpoenaed witness from giving any oral evidence at all should be dis-
allowed; objection should be taken to individual questions and answers on
behalf of a Minister at the hearing.
Conway v. Rimmer appears to haye substituted absolute judicial dis-
cretion for absolute executive discretion. There was no obvious reason why
judicial wisdom and experience should be surer guides to the public
interest on these matters than the judgments formed by the Executive.
That Ministers and civil servants have tended to give far too much weight
to the interests of secrecy and confidentiality and too little weight to the
hardship caused to individual litigants can at once be conceded. On the
other hand, the implementation of judicial policy is now unpredictable,
whereas executive policy in relation to the withholding of relevant evidence
was at least regulated by intelligible principles. Consistency is not an end
in itself, but problems of such public importance ought not to be left to
be dealt with merely on a case-to-case basis. A primary purpose of Crown
privilege was to maintain the efficient conduct of affairs or ‘the proper
functioning of the public service’. Some important information cannot be
obtained at all except under a pledge of secrecy. Many persons will not
write completely candid appreciations if they have reason to think that
58
their comments may be subsequently divulged . To some people, in-

55. Though disclosure of a report concerned with an investigation of a particular

suspected crime was ordered in Conway v. Rimmer.
56. Clearly there ought to be a right of appeal or reference on this issue to a superior
court before a decision to overrule the claim to privilege from disclosure is final.
57. Broome v. Broome [1955] P. 190.
58. This point emerges in the selection of candidates for university places. Head
teachers’ confidential assessments are occasionally wrong-headed, but they are usually
quite frank. Disclosure of such assessments would probably be self-defeating while we
maintain a system of selective admissions, because some head teachers would ‘pull
their punches’. Testimonials for graduate students coming from certain countries
where ‘open testimonials’ are the rule (and actions for libel against the authors of
testimonials have not been uncommon) are seldom worth the paper they are written on.

Crown Proceedings 611

eluding judges, who ought to know better, the latter
statement is apparently
incredible, at any rate when it is made with reference
to civil servants. One
can only reply by dogmatic assertions:

1. If, for example, a Department is to place

a contract worth £10 millions,
itmust have the fullest possible information about the standing
of potential
contractors and any personal characteristics of their
directors and managers
which cast doubt on their suitability to be entrusted with a major
project.
2. Similarly, ifa Minister has to conduct personal negotiations with
a
group of people with whom he is unacquainted, he ought to be briefed by
frank appreciations prepared by his advisers.

3. These comments will sometimes be disparaging and defamatory. 59

4. They ought to be put in writing, not left to oral communication.
Memory fades and Ministers change.
5. Senior
civil servants do in fact express themselves on paper far
more
and bluntly on ‘personnel’ matters than, for example, local govern-
fully
ment officers or most university teachers.
6. The prospect of disclosure to the persons disparaged will tend to trans-
fer comments from the departmental file to private conversations in the
office or the club.
7. This tendency is not limited to a handful of moral cowards: many of
us are afflicted with this foible.

And why do defamatory comments by judges in court, and M.P.s in

parliamentary proceedings, need to be protected by absolute privilege?
Developments in the courts since Conway v. Rimmer have been sur-
prising. In 1972 the Law Lords described the very term ‘Crown privilege’
60
as ‘wrong’, ‘misleading’, ‘not accurate’ and ‘a misnomer’. So perhaps
we ought from our vocabulary. But in $he case in
to banish the expression
question they were unanimously upholding a claim by the Home Secretary
and the Gaming Board to set aside a witness summons obtained by a
gaming club proprietor for the purpose of procuring disclosure of a con-
fidential police report on him to the Gaming Board so as to enable him
to prosecute a police officer for libel. 61 What they were trying to emphasize
was that the withholding of evidence on grounds of public interest was not
really a ‘privilege’ of the Crown at all. Two revenue cases in the Lords have

59. There is admittedly a risk that disparaging comments will be unfair, irrelevant
or founded on inadequate information.
60. R. v. Lewes JJ. ex p. Home Secretary [1973] A.C. 388 at 400, 406, 412.
t

61. There had been doubts whether ‘Crown privilege* applied to criminal pro-
ceedings.

612 Administrative Law

now touched on some awkward problems about the scope of
especially
‘public interest ’. 62 There has been a belatedacknowledgement that what
used to be called Crown privilege can be justified in some circumstances on
the grounds indicated above - that if certain communications were thought
to be likely to be revealed, they would either not be made candidly or not
be made at all - and that this might be a very undesirable state of affairs.
Recognition of these elementary facts has also been shown in other
63
contexts .

The way ahead is uncertain. The problems of public policy involved are

stillfundamental and complex. It is easier to take refuge in platitudes such

as these than to formulate clear-cut criteria for the regulation of judicial
discretion. But sooner or later that task will have to be attempted.

62. Crompton {Alfred) Amusement Machines Ltd v. Customs & Excise Commissioners
(No. 2) [1974] A.C. 405 (Court of Appeal overruled: disclosure of the documents
asked for considered contrary to public interest). Norwich Pharmacol Co. v. Customs
and Excise Commissioners [1974] A.C. 133 (discovery allowed: documents not highly
confidential and would relate to persons who were probably tortfeasors).
63. Sec P. v. Gaming Board ex p. Benaim and Khaida [1970] 2 Q.B. 417 (p. 571,
,

above); Collymore v. Att.-Gen. [1970] A.C. 538 at 549-51 (confidential information

about industrial disputes); Pe D {Infants) [1970] 1 W.L.R. 599 (local authority case
records of children under care); D. v. N.S.P.C.C. The Times 3 February 1977 (House
,

of Lords). See also, on natural justice, pp. 566-7.

In Blackpool Corporation v. Locker [1948J 1 K.B. 349 it was held that Crown privilege
could not be claimed by local authorities. Now it seems that a local authority may
object to the production of evidence on grounds of public interest and that the material
excluded does not even have to emanate from the central government {Re D, above).

Crown Proceedings 613

 Chapter 29
Redress of Grievances:
The Ombudsman and Others

Forms of redress against official conduct

Judicial redress

The main features of judicial review have been outlined in the last three
chapters and need not be recited again. The most obvious defects are:
(a) the centralization of the main forms of proceedings (other than actions
for damages) in the High Court this conduces to delay and expense; (b) the
;

still quite wide range of unreviewable administrative action; (c) the diffi-

culty in penetrating to the merits of an administrative decision; challenges

to validity often have to be based on a technical procedural or formal flaw;
it is very hard to impugn an act or decision for unreasonableness or even
for an error of fact; the procedure of the courts is not well adapted to
finding out the facts of a case, particularly where relevant material is in
departmental files; (d) the limited scope of duties to give reasons for ad-
ministrative decisions; (e) the fact that judicial remedies in administrative
law are over-complicated and hedged about by restrictive rules, some of
which are merely historical anomalies; (f) various gaps in the law governing
the civil liability of public authorities (g) perhaps above all, the fact that
;

a successful challenge to an invalid order or decision may prove a pyrrhic

victory; the winner may find himself back in ‘square one’, with a heavy
1
bill of costs and no statutory entitlement to any form of compensation.

Some defects have been eliminated or diminished since 1958 by statutory

reform, and as we have seen, the Judiciary in recent years has once again
shown itself to be willing to adapt the limited methods available to exercise
where possible effective review of administrative action. There is still room
for much improvement. There is also strong resistance to significant
change, as we saw in the Law Commission’s attempt to instigate wide-
spread reform which was resisted by the Government. 2 Proponents of

1. For imaginative proposals for reform, see Administration under Law (Justice,
1971). For the doubtful blessings of victory in the courts, see, for example. Hall & Co .

v. Shoreham-by-Sea U.D.C. [1964] 1 W.L.R. 240 (plaintiff obtained declaration that

conditions annexed to grant of planning permission were void; but the court refused
to sever the conditions and the grant fell with them).
2. See above, pp. 596-7.

614 Administrative Law

 larger changes fall intotwo main groups. First; there are those who think
in terms of reform within the framework of the existing legal system; they
may advocate amalgamation or simplification of judicial remedies, some
extension of the scope of review and of administrative liability to pay
damages and compensation, and the creation of a special Administrative
Division of the High Court, which might include members or assessors
with experience in public administration. 3 Secondly, there is a more radical
school of thought, consisting mainly of admirers of the French Conseil
who despair of piecemeal reform within the existing system and
d'Etat ,
urge the creation of a separate administrative court staffed by members
with specialized qualifications in law and administration and applying a
separate body of administrative law. Only thus, so they claim, 4 can the law
free itself from superficiality, burdensome precedent and inadequate fact-
finding techniques and develop rules of administrative justice consonant
with the needs of public authorities as well as the citizen. Their point of
view has made little headway during the last few years, though it might be
strengthened if the work of the Court of the Communities in administrative
law - it relies heavily on the French system - were to make a favourable
impression in this country.

Appeals to tribunals and Ministers

These have been considered in chapter 25.

Parliamentary safeguards
We have also considered the various opportunities to ventilate individual
grievances in Parliament, and in particular in the House of Commons, by
invoking the doctrine of individual ministerial responsibility at question
time and in debate. Select scrutinizing committees concern themselves only
incidentally with individual grievances; and the Committee on Public
Petitions, which might be expected to occupy itself actively with such
matters, is almost a dormant body. Occasionally a parliamentary storm
over an alleged scandal leads to the appointment of a special tribunal or
committee of inquiry, but sledgehammers have too often been used to
crack nuts.

Commissioners for Local Administration

These have been considered in chapter 18.

3. See note 1 and p. 596 above.

4. The most eloquent exponent of this point of view
is Professor J. D. B. Mitchell.

See his articles in [1965] Public Law 95, (1966) 15 LC.L.Q. 95; (1967) 38 Political
Quarterly 360; [1967] Camb. L.J. 46. See also Let Right be Done (Inns of Court
Conservative and Unionist Society, 1966), pp. 16-23.

Redress of Grievances: The Ombudsman and Others 615

Other safeguards

Letters to M.P.s (which may result in informal written questions to Min-

isters and, if not obtained, a question in the House), com-
satisfaction is

plaints to local councillors, to consumers’ and consultative councils and

committees linked with the work of nationalized industries, and to the
Council on Tribunals; rights of objection at formal statutory inquiries to
proposed administrative orders; opportunities to make informal repre-
sentations against departmental decisions and proposals where no statutory
machinery has been provided - these are among the media for voicing pro-
test and, from time to time, securing redress in respect of administrative
•acts and omissions. The activities of national and local opposition political

parties, of pressure groups agitating on behalf of their members, of the

press and broadcasting media and of a body such as the National Council
for Civil Liberties, and, at a different level, the work of the Citizens’ Advice
Bureaux, impose constraints on the exercise of public power and afford
prospects of redress by a person injured by its abuse.
'
Nevertheless, in the early 1960s a widespread body of opinion had been
converted to the view that a new institutional safeguard was needed. This
development sprang from at least six sources. First, the report of the
Franks Committee, and the detailed implementation of its recommend-
tions,, showed that a good deal of valuable work
could be done In improving
tribunals and
the facilities already provided in the area covered by statutory
inquiries. Secondly, it was noted that no comparable review had been
undertaken of situations typified by the Crichel Down affair, where
there

was no machinery at all for statutory appeal against or review of dis-

decisions. Thirdly, there was a feeling in some quarters
that
cretionary
Crichel Down was but the tip of an iceberg; horrendous things were being
done to the detriment of the little man by faceless bureaucrats.
To put the
an increase in State control and
matter more conservatively, there had been
and economic activity since J939; the
regulation of national resources
become a massive provider of social services and financial
State had
these developments seemed to be irreversible,
and many cases of
benefits;
Fourthly,
from maladministration would surely occur.
injustice arising
and parliamentary methods of redress had
disenchantment with judicial
to begin, but commenta-
grown. A new phase of judicial activism was about
judicial self-restraint, par-
tors were more conscious of the long period of
Ministers. Parliamentary questions and
ticularly in relation to acts done by
was noted that Commander Marten of
the like were of limited efficacy; it

Crichel Down was well-connected and tenacious, but that even

wealthy,
wrong redressed. Fifthly, the Danish Ombudsman,
so he did not get his
Publicity
Professor Hurwitz, made a lecture tour in this country in 1958.

616 Administrative Law

 was gradually built up; perhaps a cure-all would emerge from Scandinavia ?
Sixthly, the Labour Party was eventually persuaded to incorporate a
version of the Ombudsman idea in its electoral programme.

The Parliamentary Commissioner for Administration5

In 1965 the Labour Government, rejecting the view of its Conservative
predecessor, 6 published a
White Paper proposing the appointment of a
Parliamentary Commissioner for Administration. 7 The Parliamentary
Commissioner Act 1967 was the outcome.
The Commissioner (hereinafter called the P.C.A.) is appointed by the
Crown on the Prime Minister’s advice; his salary is charged on the Con-
solidated Fund; he holds office during good behaviour, subject to a re-
tiring age of sixty-five and a power of removal on addresses from both
Houses of Parliament. His status is closely analogous to that of the
Comptroller and Auditor-General indeed, the first P.C.A. was the retiring
;

Comptroller and Auditor-General, Sir Edmund Compton. 8 He has his

own Office, and appoints his own staff subject to Treasury approval. He
has a staff of sixty, drawn from the civil service none of them, astonish-
;

ingly, is a professional lawyer.

His terms of reference are to investigate complaints by individuals and
bodies corporate (other than local authorities and other public corpora-
tions) who
claim to have ‘sustained injustice in consequence of mal-
administration’, while they were in the UnitedKingdom, at the hands of
scheduled central government Departments or persons or bodies acting
on their behalf, performing or failing to perform administrative9 functions
(sections 4, 5(1) and Schedule 2).
He cannot act on his own initiative, nor can he be approached directly
by a member of the public. He can act only in pursuance of a written
complaint to an M.P. forwarded to him by an M.P. with the consent of
the complainant. His investigations must be conducted in private, and the
official head of the Department concerned and any other official implicated
in the complaint must be notified and given the opportunity of commenting
on the allegations. No set form of inquiry is prescribed, but the P.C.A. has
5. For the background to the establishment of this office, see Gregory and Hulches-
son, The Parliamentary Ombudsman .

6. 666 H.C. Deb. 1125 (8 November 1962).

7. Cmnd 2767 (1965).
8. For Sir Edmund’s own account of and functions, see (1968) 10 JL of
his office
the Society of Public Teachers of Law (N.S.) 101 , and for that of his
successor. Sir Alan
Marre, see Annual Report for 1975, H.C. 141 (1975-76), paras. 47-55. Like his
predecessors, the present Commissioner, Sir Idwal Pugh, was formerly a senior civil
servant.
9. As distinct from judicial or legislative. See pp. 323-4, 514-15.

Redress of Grievances: The Ombudsman and Others 617

adequate powers to investigate a complaint thoroughly. He can administer
oaths and compel the attendance of witnesses and documents. Wilful
obstruction of his investigations is punishable as if it were a contempt of
court. His reports on investigations, and communications with M.P.s on
the subject-matter of a complaint, are protected by absolute privilege in the
law of defamation. 10 Irrespective of the Official Secrets Acts and the law
relating to Crown privilege, he must be allowed access to any relevant
document other than one relating to the proceedings of the Cabinet and
its committees (section 8), though ‘Crown privilege’ may be asserted to
prevent the P.C.A. and his officers from disclosing information thus ob-
tained (sections 11(3)), and the Official Secrets Acts apply to disclosures
other than for the purposes of investigations and reports (sections
11 ( 1 ), (2 )).
The P.C.A. has no power to alter or rescind decisions. His statutory
powers are confined to making reports on his investigations, or giving to
the M.P. who referred the complaint his reasons for not investigating.
Reports on investigations go to the M.P. who referred the complaint, and
the official against whom the allegations were made and his departmental
head. If it appears to the P.C.A. that an injustice has been caused by
maladministration and has not been rectified, he may make a special
report to both Houses; he may make other special reports, and must make
an annual report, to each House. His special and annual reports are con-
sidered by a small Select Committee of the House of Commons on the
Parliamentary Commissioner for Administration. Occasionally his special
reports have been debated on the floor of the House. A considerable
quantity of published material about his work is now available.

Jurisdictional l imitations

‘Injustice’ and ‘maladministration’ were deliberately left undefined.

‘Injustice’means something wider than legally redressible damage; it in-
cludes hardship and a sense of grievance which ought not to have arisen.
‘Maladministration’ covers a multitude of administrative sins, sins of
commission and omission - corruption, bias, unfair discrimination, harsh-
ness, misleading a member of the public as to his rights, failing to notify
him properly of his rights or to explain the reasons for a decision, general
high-handedness,. using powers for a wrong purpose, failing to consider
relevant materials, taking irrelevant material into account, losing or failing
to reply to correspondence, delaying unreasonably before making a tax
refund or presenting a tax demand or dealing with an application for a
grant or licence, and so on. The Commissioner is not allowed to question
10. s. 10(5). The M.P. also enjoys absolute privilege in respect of such communica-

tions and in the communication of the F.C.A/s report to the complainant.

618 Administrative Law

‘the merits of a decision taken without maladministration ... in the exer-
cise of a discretion . (section 12(3)). He interpreted this limitation as
.

meaning that he could not consider whether a decision was manifestly

unreasonable or even, apparently, based on a clear mistake of fact, if the
appropriate procedures had been followed and there was no evidence of
impropriety. He was persuaded by the Select Committee that in an extreme
case he ought to infer maladministration from the ‘thoroughly bad*
11
quality of a decision; but he has shown extreme circumspection in this
matter. The Committee also persuaded him to consider the bad rule’ - an *

internal departmental rule which caused undue hardship to individuals -

and to find maladministration if hardship had arisen in a subsequent case
arising under the same rule where it had not been properly reviewed by the
Department. There are indications that his activities in this area have
induced some Departments to re-examine their rules and give them better
publicity. 12 The P.C.A. has also accepted that he can investigate the ad-
ministrative procedures attendant on the making and review of statutory
orders other than statutory instruments.
Until 1973 the P.C.A. had no jurisdiction to investigate complaints
about the National Health Service. The National Health Service Re-
organization Act 1973, Part III 13 now provides for the appointment of a
Health Service Commissioner for England and one for Wales (section 31),
and the P.C.A. was given these additional posts on October 1973. The
1

procedures are broadly similar to those under the 1967 Act, although an
improvement is that a complaint may be made direct to the Commissioner
(section 35(3)). Subject to exceptions in sections 34 (2), (4) and (5), he may
investigate an alleged failure in a service, or failure to supply a service pro-
vided by specified National Health Service bodies, or any other action
taken by or on behalf of such bodies (section 34(2)). The 1973 Act does not
go as far as some might have wished schedule
;
3 lists several matters not
subject to investigation, the most important being action which, in the

Commissioner’s opinion, was taken solely in consequence of clinical judge-

ment. 14
Among the matters excluded from his jurisdiction under the Third Sched-
ule to the 1967 Act are matters arising in external relations and overseas
territories, extradition, action taken for the investigation of crime or the

11. H.C. 350 (1967-68), 11-14.

12. See Cmnd 4729 (1971), § 2; H.C. 72 (1972-73), §§ 19-40.
13. See also Cmnd 5055 (1972), pp. 44-5, 55-6; National Health Service (Scotland)
Act 1972, Part VII.
14. In the First Report of the Health Service Commissioner: Annual Report for
1975-76, H.C. 528 (1975-76), the Commissioner recorded that of 504 complaints
received, 360 were outside his jurisdiction; of the 128 complaints fully investigated, 67
were found to be wholly or partly justified.

Redress of Grievances: The Ombudsman and Others 619

 protection of national security (including
the withholding or imnoundi™
of passports) Judicial proceedings, the
prerogative of mercy, gove^nt
contractual and commercial transactions
(subject to limited IxcepTiS
personnel mattersm the armed forces and the civil service, the
honours and die granting of royal charters.
award of
.
Nor can he investigate com-
OCa aUt ntieS pubHc cor rat5ons
ments of the Crown) ^
\ or the police.
r
P°
These are very
(other than instru-
big exclusions. If the
subject-matter of a complaint lies within
the jurisdiction of a special
tnbunal or a court of law, the P.C.A. has a
discretion: normally he should
abstain from investigating the matter, but
he may waive the rule if it is
unreasonable in the particular circumstances to
expect the complainant to
resort or to have resorted to the tribunal
or court (section 5(2)) We
cannot
all be experts in administrative law.
In practice, wittingly or otherwise
he
has frequently investigated complaints of
procedural maladministration
which Would have been judicially reviewable. This
makes it all the more
incongruous that he should be so averse from treating
manifest unreason-
ableness as maladministration. There is no bar to
investigating matters that
could be or have been raised at a statutory inquiry
held on behalf of a
Minister, provided that the inquiry leads to an
‘administrative’ type of
decision.
In 1975 the P.C.A. received 928 complaints from M.P.s,
an increase of
224 on the previous year and the highest total since the record 1120 in
1968.
Investigation of 321 cases was completed, and in thirty-seven
per cent of
them an element of maladministration was found leading to some measure
of injustice: thirty-nine cases concerned the Department of Health and
Social Security, twenty-seven the Inland Revenue and nine the Department
of the Environment. Although the number of cases rejected in 1975 as
being outside his jurisdiction rose,' the P.C.A.’s opinion was that this was
partly because of the higher intake and partly because he had made greater
use of his discretion not to investigate complaints. 15 None of the complaints
proved to be of a really serious character.

Evaluation 16

The Ombudsman was greeted by the sceptics as an Ombudsmouse. Fol-

lowing his special report on the Sachsenhausen case late in 1967, 17 when
he found that Foreign Office officials had been guilty of procedural mai-
ls. Annual Report for 1975, H.C. 141 (1975-76), especially paras. 5, 9 and 12. (The
P.C.A/s reports and those of the Select Committee are published as House of Commons
papers).
16. See Jackson [1971] Public Law 39; Gregory and Alexander (1972) 50 Public
Administration *313; Cohen [1972] Public Law 204; Marshall [1973] Public Law 32;
K. C. Wheare, Maladministration and its Remedies (1973), ch. 5.
17. H.C. 54 (1967-68).

620 Administrative Law

 administration in dealing with an application by ex.-prisoners-of-war for
discretionary compensation for suffering caused by incarceration in a Nazi
concentration camp, the ranks of Tuscany were cheering. The Foreign
Secretary strenuously defended his officials and complained of an en-
croachment on the principle of ministerial responsibility, but still agreed
to pay up 18 .

'
From him there have c,ome no sensational exposures of bureaucratic
turpitude or gross abuses of power. The general picture emerging from his
reports is one of a high level of integrity (not to be confused with efficiency)
in British central government administration 19 There are other factors
.

impossible to quantify. The Select Committee has asked whether, if the

P.C.A. is to be appointed from the civil service, a period of ‘quarantine"
between leaving the service and taking up office should be introduced, and
also is strongly of the view that the House of Commons should be con-
sulted before an appointment is made 20 The ‘M.P. filter’ has not worked
.

well. The P.C.A. has placed a very high priority on cultivating good re-
lations with heads of Departments, so as to obtain their cooperation in his
investigations, but he is little known to the general public. He is a remote
figure, neither seeking nor being accorded publicity 21 His terms of refer-
.

ence are fairly narrow and have, on the whole, been conservatively inter-
preted , 22 despite the prodding by the Select Committee. Another possible
reason for disillusionment or tepid enthusiasm is that a finding of mal-
administration does not necessarily lead to anything more than an ex-
pression of official regret or an undertaking that the Department will take
another look at its procedures.

758 H.C. Deb. 107-70 (5 February 1968); Fry [1970] Public Law 336.
18.
This is not to say that official turpitude is non-existent. Occasional prosecutions,
19.
and revelations of financial malversation in reports of the Comptroller and Auditor-
General, show that it does exist; but all the available evidence suggests that it exists
only on a very small scale at the central government level, cf. Report of the Royal
Commission on Standards of Conduct in Public Life, Cmnd 6524 (1976).
20. Second Report from the Select Committee on the Parliamentary Commissioner
for Administration, 1975-76 (H.C. 480 (1975-76)).
21. His reports on investigations go to M.P.s; he does not give them any publicity
himself, except in special reports and his Annual Report. Lack of publicity for the
office probably tends to cause fewer complainants to take the initiative in asking
M.P.s to bring their own cases before him. But note the P.C.A.’s views on publicity
in his Annual Report for 1975 (H.C. 141 (1975-76)), paras. 38-9.
22. Subject to exceptions, some of which (the ‘bad rule’ and the type of case where
there might also be a successful invocation of judicial review) are mentioned below.
There are others - cases where an action for negligent misstatements might have been
brought (but the law on this matter is still developing), and cases where the complainant,
shows a prima facie case of injustice but cannot point to an act of maladministration,
in which event the P.C.A. will often begin an investigation.

Redress of Grievances: The Ombudsman and Others 621

 On the credit side of the balance, it is apparent that the P.C.A.’s investi-
gations are extremely thorough . 23 Departments have often rescinded
decisions, made ex gratia payments or refunds, waived or modified tax
claims 24 in response to his adverse findings; they have been made more
aware of the need for giving adequate and prompt explanations in response
to requests and inquiries from members of the public. The Select Com-
mittee on the Parliamentary Commissioner, which has acquired a good
deal of information about administrative procedures by considering his
reports and examining senior departmental witnesses, has not been as
inhibited as the P.C.A. in passing judgment on the merits of a rule or
decision. It has been instrumental in securing a relaxation in the Inland
Revenue rules for remission of tax arrears in cases of hardship 25 though ,

it has been unsuccessful in persuading the Government to sponsor legis-

26
lation enlarging the Commissioner’s terms of reference This is quite .

undramatic stuff, but those who would write the experiment off as a fail-
ure would do well to read his Annual Reports and the Reports (with
Minutes of Evidence) of the Select Committee. Some people have obtained
redress which they would almost certainly have been denied had these
institutions not existed.
To assess the impact of his work on civil service efficiency is imprac-
ticable. As he cannot most politically
deal with personnel matters or the
sensitive issues, there is no obvious reason why the knowledge that he has
access to files should inhibit civil servants in expressing their opinions.
There have been isolated complaints that he has made officers in some
departments too non-committal. Complaints that he has heavily increased
departmental workloads are unsubstantiated. Civil service morale does not
appear to have suffered from his activities. He has been careful, as far as
possible, to avoid identifying individual culprits in his reports, and in
general he has shielded the service against sweeping and unwarranted
aspersions. (This has indeed been the experience of Ombudsmen in several
other countries.) Senior departmental officers, and Ministers, have been
given a better idea of personal, organizational and procedural deficiencies
at a lower level.

23. See, for example. Case No. 337/5 (Annual Report for 1971 (H.C. 116 (1971-72)),
pp. 26-46.
For the dubious legal validity of some of these extra-statutory concessions, see
24.
R. Customs and Excise Commissioners ex p. Cook [1970] 1 W.L.R. 450.
v. ,

25. See Cmnd 4729 (1971); see also note 12.

26. Cmnd 4661 (1971), where the Government rejected its recommendations for an
extension of the P.C.A.’s jurisdiction to include various personnel matters in the public
service and the forces. For early appraisals of the Committee’s work, see Geoffrey
Marshall in Hanson and Crick (eds.). The Commons in Transition , ch. 6; Stacey, op. cit. t
ch. 15.

622 Administrative Law

 Although Departments cease to be monolithic under the P.C.A.’s scru-
tiny, theconcept of individual ministerial responsibility to Parliament has
not been undermined. The P.C.A.’s criticisms are indeed directed almost
exclusively against officials, but the Minister
remains politically vulnerable
21
within the limits already explained; and he is supplied with ample
responsibility. There is no
material for the meaningful discharge of his
evidence at all that the P.C.A. has detracted from the traditional functions
grievances. M.P.s have a
of M.P.s in procuring the redress of individual
to him
wide discretion whether or not to pass a complaint on
for investi-

gation, as has unfortunately been demonstrated.

He is able to obtain access
closed to M.P.s and has coercive powers that they lack. His
to materials
criticisms of individual administrative
decisions cannot be brushed aside

as superficial or politically motivated.

They have provided opportunities for
well-informed parliamentary questions and some well-informed debates.
government of country seriously addresses itself to ad-
When a this
will be the reports
ministrative law reform, a primary source of information
Administration. In particular, he
of the Parliamentary Commissioner for
in which administrative ineptitude has
has exposed a number of situations
or hardship for which no legal redress may yet be obtainable as
led to loss
gratia award, it is often unjust
of right. Where it is proper to make an ex
that a remedy in the courts should be denied.

27. See pp. 161-7.

Ombudsman and Others 623

Redress of Grievances: The
Part Seven
Commonwealth Affairs

This Part has been compressed into a single chapter. It begins with some
comments on the constitutional position of Wales and Scotland, and an
outline of the status and problems of Northern Ireland. With England,
these countries comprise the United Kingdom. There is also a
constitutional entity called the ‘British Islands’, consisting of the United
Kingdom, the Channel Islands and the Isle of Man. We shall note
some of the peculiar constitutional features of the islands and their
relationship with the United Kingdom. And the Government’s proposals
to devolve certain responsibilities to Scotland and Wales will also be
examined.
Books and courses on constitutional law in this country used to include
a of material on the British Commonwealth and Empire. The sun is
lot
setting on the British Empire, and although the United Kingdom still has
a number of dependent territories they are mainly very small islands. We
shall therefore dwell but briefly on the quite substantial body of general
constitutional law relating to these territories, though we shall mention a
new kind of dependent territory, the ‘associated state’. Here the problem
of Anguilla has posed some awkward constitutional problems.
Relations between the United Kingdom and the independent members
of the Commonwealth are regulated less by strict law than by
constitutional convention and political practice. Indeed, the
Commonwealth has become so loose an international association that it
is doubtful whether one could reasonably speak of its ‘constitutional

structure’. Constitutional rules in Commonwealth relations are mainly

about how membership is acquired and lost; there are few rules saying
what members ought to do.
We have not tried to survey the internal constitutional laws of individual
Commonwealth countries, save to the extent that they have a residual
impact on United Kingdom constitutional law. Such a task could only be
undertaken properly in a different and very large book; and it would
have to be rewritten every few months if it were to be kept up to date.
Chapter 30
The United Kingdom
and Commonwealth

The United Kingdom 1

The United Kingdom means the United Kingdom of Great Britain and
Northern Ireland and its territorial waters. It is a unitary sovereign State.
In 1284 Wales was annexed by the Crown. Effective integration with
England was deferred till 1536, when Welshmen were placed in the same
legal position as Englishmen, Welsh constituencies were given representa-
tion in the English Parliament and the English system of local government
was extended to Wales. From 1746 till 1967 the word ‘England* in an Act
of Parliament was deemed to include Wales; for Acts passed smcc then this
slur on the principality has been removed. We have noted the existence of
2

committees for Welsh affairs in the House of Commons. 3 There is an

annual debate on Welsh affairs at Westminster. The Welsh Grand Com-
mittee is a deliberative body and does not consider bills at second reading;
little use is in practice made of the ‘Welsh standing committee’ on bills,

partly because few bills relate exclusively to Wales and partly because there
is a permanent anti-Conscrvative majority in Wales, so that a Conservative

Government’s controversial legislation might flounder in that committee.

Administrative devolution is more important. In 1951 the office of Minister

for Welsh Affairs was created at first the office was combined with another
;

departmental responsibility, 4 but in 1964 the Welsh Office became a

separate Department headed by a Secretary of State with a seat in the
Cabinet. He has responsibility for primary and secondary education in
Wales and a number of other local and regional services; most of the
Office’s work is done in Cardiff. There are also Welsh departments of some

1. See D. G. T. Williams, ‘The Constitution of the United Kingdom’ [1972B] Camb.

L.J. 266.
2. Welsh Language Act 1967, s. 4. Docs Wales include Monmouthshire? There is
no answer to this question, but under the Local Government Act 1972,
all-inclusive
s. 20(7), Sched. 4, it does geographically, though Monmouthshire ceases to exist as

a local government unit.

3. p. 269; S.O. Nos. 62, 72 73(2). See also Ivor Gowan in J. A. Andrews (ed .), Welsh
,

Studies in Public Law ,

ch. 4.
4. The first Minister for Welsh Affairs was the then Home Secretary, Sir David
Maxwell Fyfe. He was known in Wales as ‘Dai Bananas’.

The United Kingdom and Commonwealth 627

Whitehall ministries - for example the Ministry of Agriculture and
Fisheries. Provision has been made for the use of the Welsh language in
courts sitting in Wales, and for certain official purposes. 5 Welsh national-
ism, nurtured on a distinctive culture, emerged as a political force of some
consequence in the late 1960s. Further and significant devolution of re-
sponsibilities for Welsh affairs is to be expected if the Government’s
devolution proposals are enacted. 6
In 1603 James VI of Scotland became James I of England; this was a
personal union and did not make Scotland and England one. In 1707 the
Acts of Union created a United Kingdom of Great Britain, merging the
Scottish and English Parliaments in pursuance of negotiated Articles of
Union. 7 We have already referred to the controversy about the possible
effect of the fundamental terms of the Treaty and Acts of Union on the
8 9
sovereignty of the United Kingdom Parliament. Scotland has its own
10 11
Established Church, judicial system, criminal and civil law (rooted in
Roman concepts but now substantially influenced by the common law and
United Kingdom legislation), local government and educational systems.
Accordingly, a substantial measure of responsibility for Scotland’s internal
affairs rests in Scottish hands, though by no means enough to satisfy
separatists in the Scottish National Party,
12
for whom the Government’s
6
devolution plans do not go anything like far enough. At Westminster a
large majority of Scottish bills go to the Scottish Grand Committee and a
Scottish standing committee, the part played by the House of Commons
13
as a whole being little more than formal. There has been a Secretary for
Scotland since 1885 and a Secretary of State since 1926; he is always a
member of a peace-time Cabinet. St Andrew’s House, Edinburgh, is the
home of the four sub-departments of the Scottish Office — the Department
Development De-
of Agriculture and Fisheries for Scotland, the Scottish
5. Welsh Courts Act 1942; Welsh Language Act 1967.
6. See below pp. 639-40.
7. A. V. Dicey and R. S. Rait, Thoughts on the Union.
See pp. 25, 72.
8.

Including Rockall: Island of Rockall Act 1972.

9;

10 The Presbyterian Church of Scotland.

The Church of Ireland was severed from
England 1869 and the Church of Wales was disestablished in 1914.
the Church of in
its Laws and Constitution. There
.11 See T. B. Smith, Scotland: The Development of
the Council
is a separate Law Commission for Scotland and a Scottish Committee of

MacCormick (ed.), The Scottish Debate H. J. Hanham, Scottish

12. cf. Neil ;

H.C.S.O. Nos. 62, 67.71, p.

See Edwards (1972) 25 Parliamentary Affairs 303;
,13.
Grand Committee also considers the Scottish estimates.
268f., above. The Scottish
January 1973 the limitation of the size
Peers of Scotland sit in the House of Lords. In

of the standing committee on the Local

Government (Scotland) Bill to thirty members
led to a protest ‘sit-in’ by excluded
Scottish M.P.s.

628 Commonwealth Affairs

partment, the Scottish Education Department, the Scottish Home and
Health Department. The Secretary of State also has responsibility for a
number of minor Departments (for example, the General Register Office
for Scotland, the Scottish Record Office), and for public corporations
operating only in Scotland (such as the two electricity Boards and the
Highlands and Islands Development Board). He also has joint responsi-
bility for the Forestry Commission and the Crown Estate Commissioners.
A number of United Kingdom Departments have regional organizations
in Scotland with Scottish directors or controllers; the Secretary of State
has a miscellany of coordinating functions. There are Scottish boards,
councils or committees for some of the nationalized industries and other
quasi-government bodies. 14 The Lord Advocate has a unique blend of
responsibilities for the Scottish legal system, particularly on the criminal
side. But there is a widespread view in Scotland that national identity
should be more adequately recognized in institutional terms.
In the Plantagenet period Ireland was subjected to the overlordship of
the Kings of England. Attempts to subdue its turbulent people were
seldom sustained or efficacious. After the Reformation, Protestant settle-
ment and discrimination against the Roman Catholic populace provoked
insurrection followed by repression, more thoroughgoing in the times of
Cromwell and William III than in earlier years. In 1783 the British Parlia-
ment purported to relinquish jurisdiction over Ireland; and for ‘eighteen
years Ireland was no more subject to England than was England to
Ireland’. 15 In 1801 Ireland, which then had a separate Parliament, entered
into union with Great Britain, and the Irish question entered into British
politics. A hundred members of Parliament were elected for Irish con-
16
stituencies. Irish nationalism grew, and eventually Gladstone, at seventy-
six, was converted to the cause of Irish home rule; but his party split on
the issue -Dicey and Anson were among the more prominent Liberal
Unionists - and his first Home Rule Bill was defeated in the Commons.
The second was thrown out by the Lords. In August 1914 the Government
of Ireland Act was passed under the Parliament Act procedure, providing
for an internally self-governing, undivided Ireland, with its own Parliament
subject to the overriding paramountcy of the United Kingdom Parliament.
This measure, bitterly opposed by the Protestant majority in the province

14. See, for example, J. D. B. Mitchell, Constitutional Law (2nd edn); J. N. Wolfe
(ed.). Government and Nationalism in Scotland (1969); Mitchell in Andrews (cd.), Welsh
Studies in Public Law, ch. 5; J. P. Mackintosh, The Devolution of Power, ch. 6; Com-
mission on the Constitution, Written Evidence 2 - the Scottish Office, the Lord Advo-
cate’s Department and the Crown Office; J. G. Kellas, The Scottish Political System.
15. F. W. Maitland, Constitutional History of England p. 335.
,

16. There were also twenty-eight representative peers of Ireland in the Lords. See
p. 289, note 9.

The United Kingdom and Commonwealth 629

 of Ulster and their sympathizers across the water, never came into effect.
Itwas superseded by the Government of Ireland Act 1920, which provided
for two separate (and subordinate) Parliaments, one for Northern Ireland
and one for Southern Ireland. Because of an armed uprising in the South,
only part of this Act became operative. In 1922 the Irish Free State (now
the Republic of Ireland) was created and given Dominion status. 17 From
then on, 18 the United Kingdom meant Great Britain and Northern
Ireland. 19
Space permits only the drawing of a sketch of the constitutional develop-
ments since 1920, although the latest legal and constitutional situation will
be explained.
The constitution of Northern Ireland and the powers of its Government
and Parliament were set out in the 1920 Act as amended by subsequent
legislation of the United Kingdom Parliament. 20
Under the 1920 Act Northern Ireland had some of the trappings of an
independent State - a Prime Minister, Cabinet and Privy Council, a bi-
cameral Parliament (composed of a Senate and a House of Commons),
responsible self-government, a Supreme Court with a Lord Chief Justice,
and so on. The Northern Ireland Parliament had a general power to make
laws for the peace, order and good government of the six counties.
Appearances were not entirely deceptive. Various aspects of public law
have been regulated differently in Northern Ireland. For instance, gas is
not nationalized; there are no lay magistrates. In their own house the
Northern Ireland authorities were, to a large extent, masters, till law and
order broke down.
The United Kingdom Parliament retained plenary legislative powers in
Northern Ireland (section 75 of the 1920 Act) and the powers of the United
Kingdom Government were potentially unrestricted; but in relation to
4
transferred matters’ (i.e. matters assigned to Northern Ireland com-
petence) the practice was for the United Kingdom to intervene only at the
17. InUnited Kingdom law by virtue of the Trish Free State (Agreement) Act 1922
and the Free State Constitution Act 1922. For the constitutional problems arising
Irish
out of the legislation, see K. C. Wheare, The Constitutional Structure of the Common-
wealth, pp. 90-94.
18.The exact date of the Free State’s departure from the United Kingdom within the
legalmeaning of the latter term is not altogether clear. See Sir Kenneth Roberts- Wray,
Commonwealth and Colonial Law pp. 32-5.
,

19. Northern Ireland comprises six of the nine counties formerly comprised within
the province of Ulster. The terms ‘Northern Ireland’ and ‘Ulster’ are, however, often
used interchangeably.
20. The leading commentary, written from the standpoint of a moderate Unionist, is
Harry Calvert’s Constitutional Law in Northern Ireland (1968). For an informative and
close critique of events in recent years, see Claire Palley, The Evolution, Disintegration
and Possible Reconstruction of the Northern Ireland Constitution (1972), reprinted from
(1972) 1 Anglo-American Law Review 368-476.

630 Commonwealth Affairs

request or with the concurrence or acquiescence of the Northern Ireland
Government. Nevertheless, even before orderly civil government began to
collapse, the United Kingdom was able to exert some influence over
Northern Ireland’s policies within the transferred field because of
Stormont’s financial dependence.
During the period from October 1968, when communal disturbances
broke out in Londonderry, till the suspension of Stormont in 1972, more
constitutional and administrative reforms in Northern Ireland were intro-
duced than in the preceding forty-eight years. The basic problem was
simple to state, perhaps impossible to solve. Public life (and often private

life) Northern Ireland was dominated by sectarian faction and the

in
problem of the border with the south. A million Protestants were over-
whelmingly unionist; half a million Catholics were predominantly sep-
aratist and republican. Of the twelve M.P.s returned from Northern
Ireland constituencies to Westminster, at least nine would be Protestant
Unionists. The Unionist Party was permanently in office at Stormont; the
minority had no prospect of attaining political power by constitutional
means. In such circumstances the Westminster model of responsible govern-
ment would not work in the manner familiar in Great Britain. By 1972 at
the latest, as attitudes on both sides polarized amid mounting terrorism,
repression and hatred, it had ceased to work at all.
21
In 1969 the main specific grievances of Catholics were found to be the
allegedly discriminatory allocation of public housing; discrimination in
local government appointments; distortion of local government boundaries
(and restriction of the franchise to ratepayers) to perpetuate local unionist
dominance; failure by the Government properly to investigate complaints
of unfair discrimination; resentment of the existence and conduct of the
Ulster Special Constabulary (the ‘B Specials’), a para-military force; the
existence and use of the Civil Authorities (Special Powers) Act (N.I.) 1922,
a kind of permanent Emergency Powers Act.
22
A series of reforms fol-
lowed, mainly prompted by Westminster, the United Kingdom having
been obliged to send large reinforcements of troops to Northern Ireland in
an attempt to restore order. Local government reforms, already under
way, were expedited. Universal suffrage for local electors was introduced
23

21. Report of the Cameron Commission on Disturbances in Northern Ireland

(Cmd 532 (N.I. 1969), § 229). For a fuller study, see the Report of the Scarman
Tribunal of Inquiry on Violence and Civil Disturbances in Northern Ireland in 1969
(Cmd 566 (N.I. 1972)). See also the Report of the Hunt Committee on the Police in
Northern Ireland (Cmd 534 (N.I. 1969)).
22. For the invocation of powers under this Act before disturbances began, see
McEldovPney v. Forde [1971] A.C. 632.
23. See p. 379. In 1969, moreover, the unionist-biased system of local government in
Londonderry had been replaced by a Development Commission.

The United Kingdom and Commonwealth 631

and the business premises’ vote for Stormont electors was abolished. 24
The ‘B Specials’ were stood down and the Royal Ulster Constabulary was
(for the time being) disarmed; a new part-time local military force, the
Ulster Defence Regiment, was formed; 25 the G.O.C. Northern Ireland was
placed in control of the R.U.C. for security operations, with direct re-
sponsibility to United Kingdom Ministers. An interesting and potentially
important innovation was the establishment of the office of Commissioner
26
for Complaints, who has power to investigate complaints of injustice
caused by maladministration by local and other public bodies lying outside
the jurisdiction of the Parliamentary Commissioner for Administration;
he can receive complaints direct from members of the public, and if a com-
plaint is upheld the person aggrieved can apply to a county court for
damages and an injunction. Other reforms included the establishment of
an independent Community Relations Commission 27 and the vesting of
responsibility for prosecutions in an independent Director of Public
Prosecutions subject only to the English Attorney-General. 28
Reform came too late to satisfy the republicans, who had been brought
increasingly under the sway of the Provisional wing of the Irish Republican
Army. The situation was exacerbated by the introduction in August 1971
of the large-scale internment of security suspects under the Civil Authorities
(Special Powers) Act (N.I.) 1922 29 and far-reaching proposals for internal
;

30
constitutional reform in Northern Ireland met with little overt response
among the more moderate nationalists. In March 1972 the United King-
dom imposed direct rule on Northern Ireland; the functions of the Parlia-
ment and Government of the province were vested in the Secretary of State
for Northern Ireland. Westminster placed it on record that nothing done
under the Act imposing direct rule (the Northern Ireland (Temporary
Precisions) Act 1972) was to derogate or authorize derogation from the
31
status of Northern Ireland as part of the United Kingdom, and a ple-

£4. Electoral Law Acts (NJ.) 1968 and 1969.

25. Ulster Defence Regiment Act 1969; Cmnd 4188 (1969); Police Act 1969.
26. Commissioner for Complaints Act (N.I.) 1969. For description and evaluation,
50
see Poole [1972] Public Law 131; Garner (1970) 21 N.I.L.Q. 353; Elcock (1972)
very
Public Administration 87; Claire Palley, op. cit., pp. 422-5. The P.C.A. has only a
limited jurisdiction in relation to Northern Ireland: see Parliamentary
Commissioner
Act 1967, s. 13.

27. Palley, op. cit., pp. 425-6.

28. S.I. 1972, direct rule was imposed).
No. 538 (agreed before
inquiries into complaints about the conduct of the security forces in
con-
29. For
nection with this operation, and in the shooting in Londonderry in January 1972, see
Report);
Cmnd 4832 (1971) (the Compton Report), Cmnd 4901 (1971) (the Parker
sec p. 166 above; and H.C. 220 (1971-72) (the Widgery Report).
30. See especially Cmd 560 (N.I. 1971), Cmd 568 (N.I. 1972).
31. ibid., s. 2; see also Cmd 534 (N.I. 1969), para. 56(1);
Cmnd 4154 (1969), para 1.

632 Commonwealth Affairs

 biscite on the border issue was held in March 1973. 32 Nearly sixty per cent
of the electorate voted in favour of the province remaining a part of the
United Kingdom. Troops re-occupied the Catholic ‘no-go’ areas in Belfast
and Londonderry and Her Majesty’s Government governed again. Intern-
ment by executive order, bereft of procedural safeguards, 33 had been
phased out and replaced by detention in pursuance of a determination by
judicial commissioners subject to appeal to a judicial tribunal. 34 Imagina-
tive suggestions for the constitutional future of Northern Ireland were
canvassed. 35
A succession of constitutional experiments were tried subsequently. A
sequel to the 1972 discussion paper was published in March 1973. 36 In
order to hold the ring, direct rule under the 1972 Act was renewed for a
further year. Under the Northern Ireland Assembly Act 1973 and the
Northern Ireland Constitution Act 1973 the Northern Ireland Assembly
and Executive, based on power-sharing between the two communities, were
established, and the Stormont Parliament was abolished. 37 The paramount
legislative sovereignty of the United Kingdom Parliament was retained. 38
On that basis direct rule was ended on 1 January 1974. But the implementa-
tion of the new constitution met a severe setback in May 1974 following the
collapse of the Executive after two weeks of a politically motivated strike
in the province by so-called ‘loyalists’. Direct rule was rc-imposcd the
following day. The Assembly was prorogued and later dissolved. 39
Next came the election of a Constitutional Convention under the
Northern Ireland Act 1974, 40 to deliberate for one year. As was generally
anticipated it failed to agree and was, in turn, dissolved. 41
At the time of writing, therefore, Northern Ireland is still subjeu lu
direct rule by virtue of the Northern Ireland Act 1974, section 1 and
schedule l. 42 Broadly, that statute puts the Constitution Act 1973 on ice
and allows Her Majesty in Council to make laws for Northern Ireland; any

32. Northern Ireland (Border Poll) Act 1972.

33. cf. (1972) 23 N.I.L.Q. 331.
No. 1632.
34. S.I. 1972,
35.The Future of Northern Ireland a paper for discussion (Northern Ireland
: Office,
HMSO, October 1972).
36. Northern Ireland Constitutional Proposals Cmnd 5259 (1973).
,

37. Northern Ireland Constitution Act 1973, s. 31.

38. ibid., s. 4(4).
39. S.I. 1974, No. 926; S.I. 1975, No. 422.
40. The Act also made continued provision for direct rule: s. 1 and sched. 1.

41. S.I. 1976, No. 349.

42. The Northern Ireland (Interim Period Extension) Order 1976, S.I. 1976, No.
1089, extends until 16 July 1977 the temporary provisions for the government of
Northern Ireland contained in the 1974 Act. Further extension Orders can be made
beyond that date.

The United Kingdom and Commonwealth 633

executive functions may be carried out by the Secretary of State for
Northern Ireland. Emergency powers are exercised under the Northern
Ireland (Emergency Provisions) Act 1973 (which repealed the Civil
Authorities (Special Powers) Act (N.I.) 1922 and which substantially imple-
mented the Diplock Commission recommendations on legal procedures to
deal with terrorist activities 43 ) and the Northern Ireland (Emergency
Provisions) (Amendment) Act 1975. The duration of the powers therein
44
may be extended by Orders in Council from time to time. Violence con-
tinues.
The constitutional wheel in Northern Ireland has covered much ground,
but to the time of writing it had brought the province back to direct rule.
Who can say with any confidence which path it will follow next?

The Channel Islands and the Isle of Man45

The Channel Islands and the Isle of Man are not parts of the United
Kingdom, though in some legal contexts the term ‘United Kingdom’ is
deemed to include them. With the United Kingdom they constitute the
British Islands. 46 They are dependencies of the Crown, and belong to Her
Majesty’s dominions. Although they fall within the definition of a ‘British
possession’, 47 they are not colonies. Their status is unique.
The islands have other points of similarity. They have ancient insti-

tutions. Their affairs are subject to a degree of superintendence by the

Privy Council, acting on the recommendation of the Committees of the
Privy Council for the affairs of Jersey and Guernsey and for the Isle of
Man, and petitions relating to matters arising in the islands may be
directed to the Privy Council. The principal channel of communication
between the islands and the United Kingdom Government is the Home
Office, and the Home Secretary is the dominant figure in the Privy Council
Committees, which hardly ever meet as deliberative bodies. Assent to local
legislation is given by Order in Council and is not a mere formality.
Modifications to measures passed by the States of Jersey and Guernsey
are still sometimes made after representations by or through the Home
Office. Control over Isle of Man legislation has been more freely exercised;
bills have been dropped under Home Office pressure and in 1962 the royal

43. Cmnd 5185 (1972).

44. The Order is the Northern Ireland (Various Emergency Provisions)
latest
(Continuance) (No. 2) Order 1976, S.I. 1976, 2238.
45. See Report of the Royal Commission on the Constitution, Cmnd 5460 (1973),
Part XI.
46. Interpretation Act 1889, s. 18(1). See also British Nationality Act 1948, s. 33(2).
47. Interpretation Act 1889, s. 18(2).

634 Commonwealth Affairs

assent was withheld from a Manx bill on wireless telegraphy. Public ad-
ministration in each of the principal islands is conducted mainly through
committees or boards of the legislatures; in this respect the pattern re-
sembles that of a British local authority, and particularly in the Channel
Islands there is no clear-cut separation of powers between Executive and
Legislature. To a large extent local law is customary, lost in the mists of
time. Appeals lie from the highest courts of the islands to the Judicial
48
Committee of the Privy Council. The United Kingdom Government is
responsible for the defence and international relations of all the islands. 49
There are also important points of dissimilarity in status and internal
constitutional structure. In particular, Jersey and Guernsey have full
internal self-government and financial autonomy whereas the Isle of Man
has not; the Lieutenant-Governor of the Isle of Man has active executive
50
responsibilities as an agent of the United Kingdom Government, unlike
the Lieutenant-Governors of Jersey and Guernsey. In 1967 the United
Kingdom Parliament and Government imposed on the Isle of Man the
Marine etc. Broadcasting (Offences) Act, 51 outlawing broadcasting from
‘marine structures’ within the British Islands and the contiguous sea area.

48. Appeals arc infrequent. Since 1918 there had been only one appeal to the
Judicial Committee from the Isle of Man. From Jersey, there had been but one civil
appeal since 1939. There arc differences in judicial structure. In both Jersey and
Guernsey there is a Royal Court, composed of the Bailiff (a lawyer and the principal
insular officer) and elected jurats who are laymen. There is a separate Court of Appeal
composed of barristers from the mainland. In the Isle of Man there are Deemsters who
sit as judges, and a Judge of Appeal, an English barrister, who sits with a Deemster.

49. As far as practicable, the United Kingdom procures the insertion of a territorial
application clause into treaties to which it becomes a party so that its obligations under
the treaty shall not extend to matters lying ordinarily within the area of internal self-
government of territories (including the Islands) for whose international obligations
it is responsible. The treaty obligations will then only be extended to those territories

with their concurrence. Today this is seldom practicable. Under international pressure
and for reasons of self-interest, the United Kingdom often incurs international obli-
gations (particularly under multilateral conventions) extending of their own force to
such territories but dealing primarily with local domestic matters. The United
Kingdom Government may then be impaled on the horns of a dilemma; either it
becomes an international defaulter by failing to secure the implementation of the treaty
obligations in local law; or it infringes the canons of constitutional propriety by in-
sisting on implementation, if necessary encroaching on the field of local autonomy.
See further p. 637.
50. In the words of the Joint Evidence submitted in 1970 by the Home Office and
Tynwald (the Isleof Man Parliament) to the Royal Commission on the Constitution,
‘he is the head of the insular administration, his powers resemble those of an archetypal
colonial governor, and he is subject only to the control of the Secretary of State*
(Part B, s. 7).

51. Extended to the Isle of Man by S.I. 1967, No. 1276, in fulfilment of a multi-
lateral international convention: see note 49 above.

The United Kingdom and Commonwealth 635

No similar imposition has been made upon Jersey or Guernsey in recent
years.

The Channel Islands

When the Duke of Normandy became King of England in 1066, the

Channel Islands were already part of the Dukedom; and when King John
lost the mainland of Normandy, they remained as possessions of the
Crown. These islands off the French coast now comprise the bailiwicks of
Jersey and Guernsey. Within the bailiwick of Guernsey lie the only two
other Channel Islands having a sizable population, Alderney and Sark.
Alderney has its own representative legislature, the States, and provides

certain local services, but in 1948 responsibility for all the main services

was vested in Guernsey. Sark, though nominally a dependency of Guern-

sey, is substantially autonomous. Owned by a feudal lord with anachronis-
tic institutions, Sark (‘where time stands still’) is an anomalous survival of
5*
an age long past.
53
The status of Guernsey in relation to the United Kingdom, and its
institutions of government, closely resemble those of Jersey.
Jersey has a Lieutenant-Governor appointed by the Crown, and insular
54

officers (the Bailiff, who occupies a position comparable to that of the Lord

Chancellor or possibly the Lord Chief Justice, the Deputy Bailiff and the
Law Officers) appointed by the Crown from among Jerseymen after local
consultations. Administrative decisions are made by committees
of the

States^. the unicameral Legislature. The closest

approximation to an execu-
tive branch of government is an informal
meeting of the insular officers
composed
and the presidents of the principal committees. The States are
who presides - he acts as an impartial Speaker and has a
of the Bailiff,
(who may
power of ‘dissent’ — the Law Officers and the Dean of Jersey
six years, twenty-eight
speak but not vote), twelve senators elected for
years, and twelve constables elected from the
deputies elected every three
two separate bodies, the States of Deliberation, a
parishes. (Guernsey has
legislative body, and the States of Election,
which deal with appointments.)
less affluent members
There is universal suffrage. In 1 969 allowances for the
were introduced. Legislation by the States falls into two mam classes:

motor cars (though five of its

52. Sark (with a population of over 600) has no
residents arc reputed to own income tax, no divorce law and a
private aircraft), no
of Sark, Michael Beaumont, continues to levy customary
prison for two. The Seigneur
a formidable influence over local affairs.
feudal dues from the populace and to exercise
instructive case on the sources oflaw m
53. Vaudin v. Human [1974] A.C. 569 is an
G Sub-
M^Scc'f. de L.
mission of the States of Jersey to the Royal Commission on the
(Appx 1 to
Bois, Constitutional History of Jersey (1969)
Constitution, 1970). ^
636 Commonwealth Affairs
Laws, which have effect only when assented to by Her Majesty in Council, 55
and regulations, of a more limited scope; the latter do not require the royal
assent. The insular constitution is not contained in a single instrument, but
much of it can be pieced together from Laws of the States.
The Crown used to legislate for Jersey by prerogative Order in Council;
this power may well have been lost since the island acquired a Legislature
with an elected majority. 56 Parliament retains, in strict law, plenary legisla-
tive authority for all those parts of Her Majesty’s dominions which have
not attained independence or over which Parliament has not renounced
its sovereignty. Acts of Parliament extend to Jersey only by express words

or necessary implication. The Act is accompanied by an Order in Council

directing that be registered in the Royal Court. 57 The insular authorities

it

may suspend but not refuse registration; in any event, it would appear that
such an Act is operative in the island of its own force. In practice, Parlia-
ment hardly ever legislates directly for the island ; an Act intended to alter
the law of the island will provide for its extension to the island by Order in
Council made under the Act with such modifications of the Act as may be
specified in the Order. Consultation with the insular authorities will then
take place and an accommodation will be reached.
It would be contrary to constitutional convention for Parliament so to
legislate for the island as to impose taxation or regulate matters of pu re!y
domestic concern or derogate from the island’s constitutional autonomy
without the consent of the States.
Under ancient royal grants, the island has been given immunity from
United Kingdom taxation - it has its own fiscal laws - and the right to
duty-free entry of its produce into the United Kingdom.
The prospect of the United Kingdom’s entry into the EEC posed a
serious threat to the island’s domestic autonomy. Under article 227(4) of
the Rome Treaty, the terms of the Treaty are to apply to all European
territories for whose external relations a member state is responsible.
Unqualified accession by the United Kingdom would have entailed the
economic integration of Jersey with the United Kingdom if the terms of
the Treaty had been implemented in Jersey by the United Kingdom
Parliament. They could not be so implemented against the will of the
States without violation of constitutional conventions. In the event, a
special Protocol was negotiated by the United Kingdom Government,
55. The Lieutenant-Governor also has a power, no longer exercised, to veto a bill
encroaching on the prerogative. Bills are called projets de loL Transactions (including
bills and regulations) passed by the States are also called ‘Acts’ of the States.

56. Under 1 Cowp. 774, formulated in relation

the rule in Campbell v. Hall (1774)
However, an Order in Council establishing a Court of Appeal
to colonies. See p. 643.
was made in reliance on the prerogative in 1949.
57. See note 48 above. A similar procedure applies in Guernsey.

The United Kingdom and Commonwealth 637

whereby the Channel Islands and the Isle of Man were brought within the
Communities for most purposes but exempted from the Treaty provisions
relating to value added tax and fiscal harmonization. 58

The Isle of Man

The island is situated in the Irish Sea. In 1969 and 1970 the islanders, like
the Jerseymen, were seeking a redefinition of their constitutional position
vis-a-vis the United Kingdom. However, the changes they sought in the
Man lacked a full measure
existing relationship were larger; for the Isle of
of internal self-government. Apart from legislative controls exercised
through Parliament and the Privy Council, 59 the Crown asserts an ultimate
responsibility through the Lieutenant-Governor for the good government
of the island in respect of such matters as financial proposals, the dis-
position of the police, the direction of the civil service and the nomination
of members of public bodies. The Lieutenant-Governor is advised by an
Executive Council composed mainly of chairmen of boards of Tynwald;
but he is not obliged to act on the advice tendered. Tynwald, one of the
most ancient legislative bodies in the world - originally it was a court -
consists of two chambers, a directly elected House of Keys, and an in-
directly elected Legislative Council with a very small number .of ex officio
members. The island has its own system of internal taxation. Even before
accession to the EEC the island was in customs union with the United
Kingdom under the Isle of Man Act 1958 and received a share (about
£8 million in 1974-5) of the duties thus collected for the island; it paid
5 per cent of this revenue as a contribution to the United Kingdom in
respect of defence and common services (for example, overseas representa-
60
tion). Insular produce was exported to the United Kingdom free of duty.
The constitutional history of the island is convoluted. Till 1266 it was
under Norse rule; then it was ceded to the King of Scotland; early in the
fourteenth century it passed, somewhat obscurely, to the King of England,
who granted it to subjects, styled Lords of Man. In 1765 it was revested in
the Crown by Act of Parliament. 61 The doubts still entertained by some

58. See Cmnd 4862-1 The islands had to accept the common
(1972), pp. 16, 17, 82-4.
external tariff, and the common agricultural policy. Community
internal free trade
rules on freedom of movement of persons and services extended to the islands but the
islanders were not accorded reciprocal treatment in that sphere.
59. See Report of the Joint Working Party on the Constitutional Relationship
between Isle of Man and the United Kingdom (Home Office, HMSO, 1969).
60. For a synopsis of the position, see references cited in notes 50 and 59 above.
61. Isle of Man Purchase Act 1765. There is no corresponding or analogous legis-
lation for the Channel Islands.

638 Commonwealth Affairs

 :

Channel Islanders as to thelegal omnicompetence of the United Kingdom

Parliament over those islands are not shared by Manxmen.
In 1970, a joint standing consultative committee, to discuss matters of
common concern, was established it was composed of equal numbers of
;

representatives of the United Kingdom and Manx Governments.

Devolution

At the time of writing a bill, the Scotland and Wales Bill, is before the
House of Commons to provide for legislative, administrative and execu-
tive devolution to Scotland and (in a more restricted form) to Wales - but
not to England. 62 Uncertainty remains about the ultimate content of the
bill and indeed whether it will pass at all, so merely a summary of the

latest position will be attempted.

The bill based on the Report of the Royal Commission on the
is

Constitution, 63 on three White Papers 64 and on the Government’s decisions

65
subsequent to the publication of those White Papers. In brief, it is
envisaged that Scotland would have an elected Assembly, responsible for
a very wide range of domestic affairs. An Executive would be drawn
from it, with its Chief appointed by the Secretary of State for Scotland on
the Assembly’s recommendation. The Assembly would be elected by the
‘first past the post’ system, for a fixed four-year term. It could pass bills on

any matter save those reserved to the United Kingdom Parliament, such
reserved areas being restricted to those necessary to prevent unacceptable
repercussions on matters for which Her Majesty’s Government would
remain responsible. any question arose before enactment as to whether a
If
bill was Assembly,
intra vires the the issue would be referred to the Judicial
Committee of the Privy Council; if such a question arose after enactment
the courts would have jurisdiction to consider whether the Assembly had
acted intra vires - potentially a fascinating constitutional development.
In Wales the scheme would be less dramatic. The Welsh Assembly would
be elected on a similar basis, but the United Kingdom Parliament would
continue to legislate for Wales in all matters, whether devolved or not; the
Assembly would work within the limits of legislation passed in London,

62. Devolution to the regions of England is still under discussion: Devolution

The English Dimension (H.M.S.O., 1976).
63. Vol. I, Report, Cmnd 5460 (1973).
Kingdom: Some Alternatives for Discussion,
64. Devolution within the United (1974);

Democracy and Devolution: Proposals for Scotland and Wales, Cmnd 5732 (1974);

Our Changing Democracy: Devolution to Scotland and Wales, Cmnd 5732 (1975);

Supplementary Statement, Cmnd 6585 (1976).

65. See 912 H.C. Deb. 270-84 (25 May 1976); 916 H.C. Deb. 1455-71 (3 August
1976).

The United Kingdom and Commonweaii'n 639

 but in controlling the devolved services it would take over whatever powers
Which that legislation conferred on the central Government. Generally the
Welsh Assembly would be able to do anything in relation to devolved
’
matters which did not require new primary legislation. There would be no
Executive; most of the Assembly’s work would be carried out in commit-
tees.
\ Devolved areas for both Scotland and Wales would include local govern-

ment; health; social services; education (but not the universities or the
research councils); housing; physical planning and the environment; trans-
port; economic development and natural resources, and tourism. The
Scottish Assembly would also be able to make new laws or amend existing
legislation within its own fields, and would be responsible for most private
law in Scotland, the general criminal law and the treatment of offenders
and the courts system.
The financial allocation for the devolved services would be in the form
of a block grant voted by the United Kingdom Parliament, which would
also approve borrowing limits for the Assemblies. United Kingdom taxes
would continue to be levied in Scotland and Wales. No powers to tax
or levy rates are envisaged for the Assemblies.
Would a bill to give effect to such a scheme satisfy for the foreseeable
future the actual and legitimate aspirations of the politically aware,
.especially in Scotland - or would
it be seen as just the first stride to in-

dependence? Will such a achieve parliamentary approval, or will

bill

the antagonism of some Government supporters and many Opposition

members defeat it, undoubtedly thus precipitating a General Election to be
fought inevitably on many issues of which devolution would be
one?
The Government has agreed to hold referenda in Scotland and Wales
to see if the people would approve the implementation
of the bill - but
the English are not to participate. Plainly this scheme would represent
the greatest redistribution this century of constitutional arrangements,
would be inappropriate here.
but further speculation

The Commonwealth
Terminology
It is used in two
The term ‘Commonwealth’ has no single fixed meaning.
independent member States;
main senses first, to denote an association of
:

various ways dependent on

secondly, to include territories which are in
The Commonwealth evolved from the British
those independent members.
Empire, which came to be called the British
Commonwealth of Nations
1920 s; the latter designation was also
ambiguous, usually (though
in the
and the self-governing
not always) referring to the United Kingdom

640 Commonwealth Affairs

Dominions. In the late 1940s, after the independent membership of the
Commonwealth had been broadened to include three Asian countries, the
was dropped from the semi-official name of the asso-
adjective ‘British’
ciation;and the term ‘Dominion’ also passed into disuse, 66 the Secretary
of State for Dominion Affairs being redesignated Secretary of State for
Commonwealth Relations. 67

Status 68

The countries or territories of the Commonwealth (using the term in the

broadest sense) fall into the following categories.

FullMembers These are independent countries, equal in status with one

.

another in Commonwealth affairs. They are the United Kingdom, Canada,

the Commonwealth of Australia, 69 New Zealand, Bahamas, Bangladesh,
Barbados, Botswana (formerly Bechuanaland), Cyprus, Fiji, the Gambia,
Ghana, Grenada, Guyana (formerly British Guiana), India, Jamaica,
*

Kenya, Lesotho (formerly Basutoland), Malawi (formerly Nyasaland),

Malaysia, Malta, Mauritius, Nigeria, Papua New Guinea, Seychelles,
Sierra Leone, Singapore, Sri Lanka (formerly Ceylon), Swaziland, Tan-
zania (Tanganyika and Zanzibar), Tonga, Trinidad and Tobago, Uganda,
Western Samoa and Zambia (formerly Northern Rhodesia).
Special Member In 1968 Nauru, formerly a trust territory administered
.

by Australia, became independent. Later that year it was admitted to what

was called special membership of the Commonwealth, importing the same
rights to participation in Commonwealth affairs as those of full members,
except the right to be represented at meetings of Commonwealth heads of
government.
Associated states . There are five Caribbean states in association with the
United Kingdom - Antigua, Dominica, St Kitts-Nevis-Anguilla, St Lucia
and St Vincent. The Cook Islands, in the South Pacific, are in free associa-
tion with New Zealand. None of these territories is a colony; none is in-
dependent; all may participate in the functional activities of the Common-
wealth.
66. de Smith, The Vocabulary of Commonwealth Relations (1954).
67. In the late 1960s the Colonial Office was merged with the Commonwealth
Office, and then the Commonwealth Office was merged with the Foreign Office under
the Secretary of State for Foreign and Commonwealth Affairs.
68. The leading work on all legal matters concerning the Commonwealth* is Sir
Kenneth Roberts-Wray’s Commonwealth and Colonial Law (1966). The Common-
wealth is always in a state of flux, and a number of changes have taken place since the
publication of that work.
69. In Australia the term ‘the Commonwealth’ usually means the central or federal
government of Australia, as opposed to the states. ’

The United Kingdom and Commonwealth 641

 .

Protected states These are not part of Her Majesty’s dominions but are
under British protection, which in all cases entails control over defence
and external affairs and in some instances limited powers to intervene in
internal affairs. The only rem ainin g protected state is Brunei (in Borneo).

Protectorates. Although not technically part of Her Majesty’s dominions,

most of the protectorates were ruled as if they were colonies; and if they
had indigenous rulers (through whom the Crown exercised ‘indirect rule’
over the territory) they were not given the jurisdictional immunity accorded
in English law to the rulers of protected states. The only surviving British
protectorate today is the Solomon Islands.

Condominia. The New Hebrides, analogous to a protectorate, are ad-

Kingdom and France. Sovereignty in the
ministered jointly by the United
Canton and Enderbury Islands is shared between the United Kingdom and
the United States.

Colonies. All the remaining colonies are islands or island groups, except
Southern Rhodesia, 70 Gibraltar, Belize (British Honduras until 1973) and
the British Antarctic Territory. With the exception of Hong Kong (likely
in due course to be retroceded to China) and Southern Rhodesia (which
had purported unilaterally to declare its independence in November 1965)
none has a population as high as 200,000.

Trust territory. Under the Covenant of the League of Nations, depen-

dencies detached from the countries defeated in the First World War were
placed under the administration of developed countries as mandated
territories. The United Kingdom, Australia, New Zealand and South
Africa became mandatories. After the Second World War, the mandated
territories that had not yet achieved independence were brought under the
United Nations trusteeship system, with the sole exception of South-West
Africa which has been in substance (though not in form) annexed by South
Africa. South Africa is now negotiating for South West Africa to become
independent as ‘Namibia*. The United Kingdom’s trust territories have
allattained to independence in one manifestation or another; they had
been administered as if they were protected states or protectorates.

Miscellaneous. Australia and New Zealand have several small depen-

71
dencies.

70. Which wasstill a colony in strict law: Southern Rhodesia Act 1965; Madzim-

bamuto Lardner-Burke [19691 1 A.C. 645; p. 665, note 113 below.

v.

71. Roberts-Wray, op. cit., p. 88.

642 Commonwealth Affairs

Constitutional aspects of dependence
The large corpus of constitutional law relating to British dependent terri-

tories has dwindled in practical importance. Here it will be dealt with only
in outline or selectively.
At several points in this book, reference has been made to protected
states, protectoratesand the status of British protected persons. 72 Only
two matters need to be emphasized. First, the legislative, executive and
judicial powers of the Crown in protected states and protectorates are
exercised by virtue of the royal prerogative as regulated by the Foreign
Jurisdiction Acts 1890 and 1913. Secondly, since the authority claimed and
exercised by the Crown in relation to protected states is often very restricted,
a protected state may accede to independence merely by an agreement be-
tween the Crown and the local ruler that protection be removed, though
consequential legislation may be needed to modify some rules of English
law.
Colonies have traditionally been classified, for the purposes of both
public law and private law, according to the methods by which they were
acquired. Settled colonies were territories without a regular ‘civilized*
system of government when occupied by British settlers and annexed by
the Crown; they included a number of territories in Australia, North
America and the Caribbean. The prerogative powers of the Crown in a
73
settled colony are narrowly circumscribed, but legislative' power over
a settled colony which did not receive a representative legislature under the

prerogative can be exercised under the British Settlements Acts 1887 and
1945. 74 The general rule is that the settlers carried the common law of
England with them.
Conquered or ceded colonies were territories taken from another metro-
politan power or an indigenous ruler and placed under the sovereignty of
the Crown. The terms of a treaty of cession are not legally binding on the
Crown unless incorporated in legislation. The Crown has plenary pre-
rogative legislative powers with respect to such a colony, subject to the
15
rule in Campbell v. Hall {111 A) - that if it grants a representative legisla-
ture to the colony (i.c., one in which at least half the members of one

72. For example, pp. 125, 126, 134-5, 408, 424, 426.
73.They arc usually stated as covering power to appoint a Governor, an Executive
Council and officials and to provide for the establishment ol courts to administer the
common law (but not another system of law - for example, ecclesiastical law: Re Lord
Bishop of Natal (1864) 3 Moo. P.C.C. (N.S.) (115) and a representative legislature.
in Council
74. See further Sabally and N'Jie v. Att.-Gen. [1965] 1 Q.B. 273 (Orders
made thereunder may be given retroactive effect; validation of elections in Gambia).
75. 1 Cowp. 204.

The United Kingdom and Commonwealth 643

 ;

76
House are elected ) it cannot derogate from that grant and thus loses that
prerogative power unless (as is usually the case) it has expressly reserved
the power when granting the constitution. If the prerogative power has
been lost but representative institutions are later revoked by statutory
77
authority, the prerogative revives In conquered or ceded colonies, the
.

system usually survived; hence, for example,

basis of the pre-existing legal
the retention of Roman-Dutch law in Ceylon and French law in Quebec
and Mauritius.
There is also a residual category of colonies which were merely annexed
without settlement, conquest or cession. To this class belong the Falkland
Islands and the British Antarctic Territory.
Constitutional changes in dependent territories are normally made by
Orders in Council - under statutory powers in protectorates and settled
colonies and under prerogative powers in conquered and ceded colonies.
Ifa colony with a representative legislature has power to alter the com-
position,powers and procedure of that legislature, the amendments must
78
be made in the manner and form required by existing law In practice,
.

major constitutional changes are made by agreement after discussions or

a conference with the United Kingdom Government.
There is no set pattern of constitutional evolution towards internal self-
government. Trends of development have varied a great deal according to
changing ideas at different periods of imperial history and the particular
79
circumstances of individual territories Of more practical importance
.

today is how independence is achieved by an internally self-governing

colony.

Dominion status and independence

is a description of the typical mechanism

for the attainment
The following
of independence by an internally self-governing colony.

76. This is the definition adopted for the purposes

of the Colonial Laws Validity
uniform.
Act 1865. In other contexts the meaning is not necessarily
77. Sammut v. Strickland [1938] A.C. 678.

78. Colonial Laws Validity Act 1865, s. 5; sec

At, -Gen. for N.S.W.v. Trethowan

[1932] A.C. 526, and the analysis of the scope

of section 5 by Roberts-Wray, op. cit.,

Pf>
and its Constitutions, ch. 2; Sir
79. See further de Smith. The New Commonwealth
Wiseman, The Cabinet m the
Ivor Jennings, The Approach to Self-Government H. V.
B. O. Nwsabueze, Con-
Commonwealth. For individual countries, sec, for example,
stitutional Law of the Nigerian Republic; H. F. Morris and J. S. Read, San a - e
Jennings, Constitution of Ceylon (3rd
Development of its Laws and Constitution; Sir Ivor
Southern Rhodesia, 1888-1965,
edn); Claire Palley, Constitutional History and Law of
Political Change in Kenya.
Y. P. Glmi and J. P. W. B. McAuslan, Public Law and

644 Commonwealth Affairs

 1. An independence conference is held in London, to determine the date

of independence, the content of the independence constitution (which is

likely to bear a close similarity to the self-government constitution) and
consequential matters -for example, questions of nationality and
citizenship.

2. A public officers’ agreement, inter alia , facilitating the retirement, with

special compensation, of expatriate officers serving locally who do not
wish to continue under the new regime, 80 and an agreement for state
succession to existing international obligations, will be negotiated after the
introduction of self-government, to come into effect upon the date of
independence.
3. An independence Act will be passed by the United Kingdom Parlia-

ment. This will be brought into effect on the ‘appointed day’ (independence
day). It will include the following provisions:

(i) Termination of all authority and responsibility of the United Kingdom

Government for the affairs of the territory.
(ii) Total abrogation of the power of the United Kingdom Parliament to

make laws for the territory. 81

(iii) Adaptations of United Kingdom law relating to nationality, citizenship

and certain other matters.

(iv) Exclusion of the territory from the expression ‘colony’ used in United
Kingdom legislation.
(v) A schedule providing for
(a) repeal of the Colonial Laws Validity Act 1865 in relation to the
territory;
(b) abolition of the doctrine of repugnancy to United Kingdom legis-
lation, and conferment of authority on the local Legislature to make laws
(subject to the constitution) inconsistent with United Kingdom legislation
extending to the territory, including the Independence Act itself;

(c) confcimcnl of full power to make laws with extraterritorial effect.

4. An
independence Order, to which the independence constitution will
be scheduled, will be made before independence by Her Majesty in
Council. This Order will be made under existing statutory or prerogative
powers, hardly ever under the Independence Act, but will likewise have
effect on the date of independence. The Governor will become a Governor-
General unless the territory becomes a republic or has a separate monarch.

80. Roberts-Wray, op. cit., pp. 287-8. The agreement will deal with other questions
and may be given legal effect under the independence constitution.
81. See p. 76. The power of the United Kingdom Parliament to alter the law of
the territory at its request and with its consent does not appear in any independence
Act since 1957. cf., however, the West Indies Act 1967, pp. 650-51 below.

The United Kingdom and Commonwealth 645

 The Governor- General will be a constitutional representative of the Queen
with very limited personal discretionary powers; in no sense will he now
be a representative of the United Kingdom Government. It is open to the
local Government to advise the appointment of the last colonial Governor
or another person to the office. The constitution will include no provision
for the reservation of bills and may have no provision for disallowance of
legislation.

Equality of status with the United Kingdom and sovereignty in inter-

national law are thus achieved in one bound.
The development of Dominion status is a tortuous, oft-told tale. 82 By
1926 the following Commonwealth countries were called self-governing
Dominions: Canada, Australia, New Zealand, South Africa (which left
83
the Commonwealth in 1961), the Irish Free State (which became known
as Eire in 1937 and seceded from the Commonwealth, under the name of
the Republic of Ireland, in 1949) 84 and Newfoundland (which relinquished
‘
its self-governing institutions after a financial collapse in 1933 and joined
Canada as its tenth province in 1949). 85 In the Report of the Inter-Imperial
Relations Committee (the Balfour Report) of the Imperial Conference held
in 1926, was declared that the United Kingdom and the Dominions were
it

‘equal in status, inno way subordinate one to another in any aspect of

their domestic or external affairs, though united by a common allegiance
to the Crown, and freely associated as members of the British Common-
wealth of Nations \ 86
This affirmation was not quite an accurate reflection of the constitu-
tional position of the Dominions at that time. There remained matters in
which they were less than equal in status to the United Kingdom. Yet the
declaration was substantially correct. The Dominions were more than
internally self-governing colonies. They had acquired independent inter-
national personalities. Some of their governments had successfully asserted,
in the early 1920s, the rights to conclude political treaties in their own
names and to be represented separately in foreign capitals. In effect they

82. See especially K. C. Wheare, The Statute of Westminster and Dominion Status
(5th edn); R. McG. Dawson, The Development of Dominion Status 1900-1936 Sir
, ;

Ivor Jennings, Constitutional Laws of the Commonwealth (3rd edn), vol. 1, chs. 1-3;
and more generally, W. K. Hancock, Survey of British Commonwealth Affairs, vols.
1 and 2, and P. N. S. Mansergh, The Commonwealth Experience .

83. See pp. 654-5.

84. Ireland Act 1949. For many years before this, Eire had regarded itself as being
Commonwealth. For the position in United Kingdom
‘externally associated* with the
law, see Murray v. Parkes [1942J 2 K.B. 126.
85. British North America Act 1949. This followed a referendum in Newfoundland.
86. Cmd 2768 (1926), p. 14.

646 Commonwealth Affairs

were sovereign states in international law. But their status had evolved by
constitutional convention and usage, not by virtue of statutory change; and
no precise moment of time could be pinpointed as the date of their
accession to independence. The term ‘independence’ was not as fashion-
6

able then as it is now; and appeals to the unity of the Empire’ still evoked
some response.
Some surviving elements of formal inequality with the United Kingdom
were removed by the enunciation of constitutional conventions at Imperial
Conferences held in 1926, 1929 and 1930. The ambiguous status of a
Governor-General was resolved; he was to be the representative of the
monarch, not of the United Kingdom Government; the United Kingdom
Government could not properly give him any instructions in relation to
a Dominion’s affairs; his appointment (and by implication, his dismissal)
was a matter for the Dominion Government alone, tendering direct advice

to the monarch. These conventions apply to the newly independent

members of the Commonwealth unless varied by agreement.
Other conventions were adopted, reducing provisions for the reservation
of bills under Dominion constitutions to empty shells, and providing that
itwould be improper for the United Kingdom Government to advise that
a Dominion Act be disallowed except for the protection of Dominion
stockholders.
87
As was indicated in chapter 2, some elements of inequality could be
eliminated only by imperial legislation. It was necessary to pass the Statute

of Westminster 1931 in order to remove the Dominions from the definition

of ‘colony’ (section 11), to abolish the doctrine of legislative repugnancy
and to exclude Dominion Parliaments from the restrictive operation of the
88
Colonial Laws Act 1865 (section 2), to declare that Dominion
Validity
Parliaments had full extraterritorial powers (section 3) and to provide that

no future United Kingdom Act was to extend or be deemed to extend to

a Dominion as part of its law unless the request and consent of the
89
Dominion concerned were expressly recited in the Act in question. In
formulas, were
1931 Australia and New Zealand, averse from legalistic
from the main provisions of the Statute; but these
expressly excluded
effect to
provisions were adopted by Australia in 1942 (with retroactive

88. Section 2 (possibly coupled with section 3) of the Statute of Westminster also
Dominion
made it possible for Dominion Parliaments to abolish all appeals from
including the appeal by special
courts to the Judicial Committee of the Privy Council,
footing by United Kingdom
leave, which was a prerogative power placed on a statutory
this accession of power
legislation (see British Coal Corporation v. R. [1935] A.C. 500);
was, however, subject to any impediment that might be
imposed by the Dominion
constitution itself.

89. For the possible effect of this section, see pp. 74-5.

The United Kingdom and Commonwealth 647

September 1939) and by New Zealand in 1947. They were never adopted by
Newfoundland.
Certain anomalies, preserved by the Statute, are' still present. The

Statute preserved the existing method of amending the British North

America Acts 1867 to 1930, the basis of the Canadian constitution. 90 Most
of the provisions of these Acts can be amended only by the United King-
dom Parliament at the request of the Canadian Government. In 1949 the
Canadian Parliament was accorded wider powers to amend the consti-
tution,
91
but the really important provisions - notably the distribution of
powers between the federal and provincial legislatures - are still alterable
only at Westminster because Canadians have not been able to agree on a
new procedure operating entirely in Canada. There is a possibility that the
United Kingdom Government might receive advice from the Canadian
Government which was strenuously opposed by some provinces.
The position in Australia was more complicated. There too the status
92
quo was preserved. But the Australian states were not even excluded from
93
the operation of the Colonial Laws Validity Act 1865, so that they were
unable to legislate repugnantly to United Kingdom legislation extending to
them as part of their law, and they lacked general extraterritorial powers.
They could not abolish appeals on matters of state law from their own
Supreme Courts to the Judicial Committee; nor could the Parliament of
the Commonwealth of Australia. Moreover, they had and have had certain
direct relationships with the United Kingdom Government. They can re-
quest the enactment of legislation at Westminster on matters falling within
their exclusive sphere without the concurrence of the Commonwealth
Government or Parliament; the appointment of a State Governor is made
on the advice of the United Kingdom Government on local initiative; the
state governments submit their own proposals to London for the award of
honours. It might be very difficult for the United Kingdqm to remove
94

some of these anomalies merely at the request of the Commonwealth

Government and Parliament. However, there would be no difficulty at all
in acceding to a Commonwealth request that the ordinary procedure for
constitutional amendment in Australia should be extended by United

90. section 7.
91. British North America (No. 2) Act 1949.
92. Statute of Westminster 1931, ss. 8, 9; Wheare, The Statute of Westminster and
Dominion Status (5th edn), ch. 8.
93. But they were excluded from the definition of ‘colony* (Statute, s. 11).
94. See further, Castles [1962] Public haw 175; R. D. Lumb, The
Constitutions of the
ever
Australian States (3rd cdn). In practice the United Kingdom Parliament hardly
legislates for the states. The United Kingdom would refuse a state
request for the
enactment of U.K. legislation to enable it to secede from the Commonwealth
of
Australia: see H.C. 88 (1934-35), the case of Western Australia.

648 Commonwealth Affairs

Kingdom legislation to the preamble and first eight sections of the
Commonwealth of Australia Constitution Act 1900, which provide that
Australia shall be an indissoluble federal Commonwealth under the Queen*

Associated statehood

Although smallness in size and population, and poverty of resources, are

not absolute bars to the attainment of sovereign independence, it is sensible
for a small dependent territory to achieve self-determination by means of
federation or association with a larger country. Another possibility is for
a become independent and then delegate the discharge of its
territory to
was the solution
responsibilities in external affairs to a larger State; this
adopted by New Zealand’s former trust territory, Western Samoa, which
concluded a Treaty of Friendship after independence in 1962, making New
Zealand its agent for that purpose. Such a device presupposes a degree of
reciprocal confidence that will rarely be present. Federalism is a more
obvious solution; unfortunately federations are difficult to construct and
more difficult to maintain as going concerns. The breakdown of the
95
Federation of the West Indies, born in 1958 and dissolved in 1962
following Jamaica’s insistence on seceding, created serious problems.
Jamaica, and Trinidad and Tobago, became independent in 1962. Abortive
attempts were made to recreate a federation of the smaller islands. After
they had broken down in 1965, the British Government produced a
scheme96 under which six of them - Barbados proceeded to independence
the following year — would cease to be colonies and instead would be states
in association with the United Kingdom.
The scheme was inspired by the arrangements, brought into effect in
association
1965, whereby the Cook Islands had become a state in free
97
with New Zealand. The main features of the Cook Islands arrangement
were that the Cook Islands, formerly a dependency ofNew Zealand, became
solely responsible for internal affairs, including constitutional
amend-
'ment; New
Zealand retained responsibility (not as a mere agent or dele-

and defence of the Cook Islands, but lacked

gate) for the external affairs
paramount legislative power to give effect to these responsibilities in the
proceed
law of the Cook Islands; and the Cook Islands were empowered to
unilaterally to independence by a prescribed constitutional procedure

which involved special majorities, a period of delay and a referendum.

95. On the date when the Federation had been due for independence.
96. Cmnd 2865 (1965).
97. Annual Survey of Commonwealth Law 1965 (ed. Wade), pp.
30-35; Cook Islands
Constitution Act 1964 (N.Z.) ; Cook Islands Constitution Amendment Act 1965
(N.Z.).

The United Kingdom and Commonwealth 649

The United Nations accepted this scheme as an authentic form of
decolonization.
Associated statehood in the Eastern Caribbean came into existence in
1967, 98 without the blessing of the United Nations but by agreement with
the territories concerned following constitutional conferences in London.
In pursuance of the West Indies Act 1967, new constitutions were brought
into force for Antigua, Dominica, Grenada, St. Kitts-Nevis-Anguilla and
St Lucia, which became associated states; St Vincent joined them in 1969.
We are concerned not with the individual constitutions but with the status
of those under the complicated Act of 1967. Broadly, the Act
territories
excluded these from the definition of ‘colony and conferred on
territories ’

them ‘Statute of Westminster powers’, with certain exceptions. The Legis-

lature of an associated state cannot make laws repugnant to the West
Indies Act itself," or United Kingdom legislation relating to nationality,
citizenship, the royal style and titles, the succession to the throne, defence
or external affairs; nor can it encroach on the United Kingdom Govern-
ment’s retained responsibilities for defence or external affairs. 100 Unlike
New Zealand in the Cook Islands, the United Kingdom has positive
powers to implement its responsibilities in the associated states. Thus, an
Order in Council relating to defence or the external affairs of an associated
state may be made with or without the consent of the Government of the
associated state and may contain ‘such provision as appears to Her
Majesty to be appropriate’ for changing the law of that state. 101 But the
Act does not permit the merger or dismemberment of an associated state
except at the request and with the consent of the state concerned. Conse-
quently the United Kingdom could not directly sever Anguilla (an integral
part of a unitary associated state) from St Kitts and Nevis without breach
of an undertaking enshrined in an Act of Parliament, unless the consent of
the associated state of St Kitts-Nevis-Anguilla, signified by a resolution of

98. See Broderick (1968) 17 I.C.L.Q. 368.

99. They can, however, amend their own constitutions in the manner there pre-
scribed (see, for example, Antigua Constitution Order 1967 (S.I. 1967, No. 225)
Sched. 2, s. 38), and they can abolish appeals from their own courts to the West Indies
Associated States Supreme Court (from which appeals lie to the Judicial Committee
of the Privy Council).
100. West Indies Act 1967, ss. 2-4, Sched. 1.

101. Including derogations from constitutional guarantees of fundamental rights

(s. 7). The question whether legislation is in fact required for the discharge of the
United Kingdom’s responsibilities for defence or external affairs is non-justiciable
(ss. The Anguilla (Temporary Provision) Order 1969 (S.I. 1969,
2(1) (a), 3(2), 7(2), 18).
No. 371) giving Her Majesty’s Commissioner in Anguilla very extensive powers in the
secessionist island, was made with the consent of the Government of St Kitts-Nevis-
Anguilla.,

650 Commonwealth Affairs

the House of Assembly, had been first obtained. 102 However, in 1971
Parlia-
ment passed the Anguilla Act, reciting that the measure was required for
the discharge of Her Majesty’s Government’s responsibility for defence
and external affairs, 103
and providing that a Commissioner could be
appointed to exercise functions conferred on him by Order in Council in
relation to Anguilla, and that if the associated state introduced an indepen-
dence bill while the Order was in force, a further Order in Council could
be made detaching Anguilla from the associated state. 104
Associated states- differ from colonies not only in the powers of their
Legislatures and the legal limitation on United Kingdom authority but
also in their legal capacity unilaterally to dissociate themselves from the
United Kingdom and proceed to independence. Under the West Indies
Act 1967, a bill to terminate association will have effect if ninety days
elapse between introduction and second reading and the bill is passed by
a two-thirds’ majority in the Legislature at third reading and is then ap-
proved by a two-thirds’ majority of the votes cast at a referendum before
being submitted to the Governor for assent. The requirement of a refer-
endum is dispensed with if a bill provides for union with an independent
Commonwealth country in the Caribbean.
If the United Kingdom unilaterally decides to terminate association, an
Order in Council can simply be made for the purpose. 105
Powers have been delegated to the governments of associated states to
conduct aspects of external relations, 106 but international responsibility
rests with the United Kingdom; the associated states are not independent
The Governors of the associated states are not, however, instru-
countries.
ments of the United Kingdom Government; the latter has a special
representative in the associated states.

102. 1967 Act, ss. 9, 19(5). Whether the United Kingdom Parliament has bound
itself not to legislate on non-reserved matters otherwise than at the request or consent
of an associated state (see s. 3(1)) is questionable, since the states are not independent
and s. 3(1) is not entrenched against repeal.
103. West Indies Act 1967, s. 3(2).
104. Under this Act (passed without the consent of the associated state) the Anguilla
(Constitution) Order 1971 (S.1. 1971, No. 1235) was made; this provided (r. 15) that no
future legislation of the associated state was to apply in Anguilla unless so extended by
local ordinance. Such action by the United Kingdom Government could hardly have
been contemplated in 1966 or 1967. See further, K. R. Simmonds (1972)21 1.C.L.Q. 151.
See now the Anguilla (Constitution) Order, S.I. 1976, No. 50, which provides a new
constitution for Anguilla and revokes S.I. 1971,* No. 1235.
105. s. 10; Sched. 2. The United Kingdom Government has offered assurances to the
governments of some of the associated states that it will give a period of notice before
ending the status of association. Grenada became independent and Izil die
in 1974: see S.I. 1973, Nos. 2155, 2156, 2157.
106. See, for example, Cmnd 2963 (1966). Annex D.

The United Kingdom and Commonwealth 651

 107
Rules of the Commonwealth association today

Relationships between the United Kingdom and its dependencies (in-

cluding associated states) are governed by detailed rules. Relations between
independent Commonwealth countries are not; the Commonwealth in this
sense is does not act as an international
almost a lawless association. It

entity. It has no legislative, executive or judicial organ of government.

Meetings of Commonwealth heads of government are in the nature of
informal international conferences ; they make few decisions, and members
are not obliged in strict law to implement such decisions as may be made.
108
The Commonwealth Secretariat, set up in 1965, has no executive powers;
it Commonwealth conferences, acts as a clearing-house for furnish-
services
ing information to Commonwealth countries, and assists in
coordinating
Commonwealth activities. The Judicial Committee of the Privy Council
has no jurisdiction to entertain appeals from the courts of Canada,
India,

Sri Lanka, Bangladesh or most of the African member states. Britain has
in the sense of rules regulating a coherent governmental
a constitution
structure; the Commonwealth has not.
The old fundamental rules of the British Commonwealth - the sover-

eignty of the Imperial Parliament and common allegiance to the Crown -

109
In so far as one can speak of the ‘constitutional law
of the
have gone.
convention, not rules of strict
Commonwealth’ today, one means rules of
hallowed convention can be changed by express agree-
law; and the most
‘Members decide what
ment or by acquiescence in a course of deviation.
rules up to date.’ An interesting 110
they want to do, and then bring the
rules was the devising of a new category
example of the flexibility of these
of membership in November 1968 - ‘special membership’ - to accommo-
date the independent microstate of
Nauru.
^

rules of the Commonwealth association today are about

Most of the
membership. The rules relating
the methods of acquiring and relinquishing
few: they emphasize equality of sta
us,
to the incidents of membership are
attached to membership are blurr
but the conventional obligations ^>
indeed scarcely tangible. One may assume, particularly the light of th m
heads of government Januapr m
Singapore Declaration of Commonwealth
Commonwealth membership over y o
1971, that it is inconsistent
with
Structure of the Commonwealth ;
de Smith,
107. See K. C. Whcare, Constitutional
Constitutions ch.
The New Commonwealth and its , 1.
m
.
London .hutt
headquarters
108 Cmnd 2713 (1965). The Secretariat has its
Stot^-Goom! »
22 orgon of tbo British Government. The
i„
G»,™.ot his ... Dopotios .»
"“S2o— W«M . for , brillhm. W-
War.Tho .»*«
22 Ss£2
was
the Co2non wealth short, hdor,
lulled in action in the Royal Air Force during the war.
Soco.tt

110. Wheare, op. cit., p. 119.

652 Commonwealth Affairs

pursue a policy of racial discrimination. But interpretations of the meaning
of racial discrimination are diverse. In 1977 Uganda was not the only
Commonwealth country to be practising what to most people were clearly
racialist policies.

Acquisition of membership

To become a full member of the Commonwealth, a country must (a) be

independent, (b) be accepted by the existing full members and (c) recognize
the Queen as Head of the Commonwealth. A dependent territory which is
about to achieve independence may obtain approval of an application for
full membership in advance of independence day accession to full member-
;

ship then takes effect on independence. It is possible for a country outside

the Commonwealth to become a full member: Cyprus left the Common-
wealth in 1960 when it became independent, but re-entered as a full member
in 1961. Western Samoa joined the Commonwealth in August 1970. Con-
sultations on applications with other members are now made through the
Commonwealth Secretariat. The need for the concurrence of existing full
members is implicit in the concept of equality of status. There is no settled
rule that consent must be unanimous. When Bangladesh was admitted to
membership in April 1972 it appears that no opposition was expressed, but
several Commonwealth members had not recognized the independence of
Bangladesh at that time. If there were to be substantial opposition to an
application - for example, if the United Kingdom had been prepared to
advance Southern Rhodesia, a colony with a white minority regime, to
independence in (say) 1964 and to propose that country’s admission to full
membership — then either the application would be rejected or withdrawn,
or a dissenting minority of members might choose to secede from the
Commonwealth or refuse to participate in aspects of Commonwealth
affairs.

The Queen’s status as Head of the Commonwealth flows directly from

the London Declaration of April 1949. India had achieved Dominion
status and independence in 1947, and wished to adopt a republican con-
stitution but remain within the Commonwealth. At a meeting of Com-
monwealth Prime Ministers, a formula was devised whereby (i) India
proclaimed its desire to continue as a full member of the Commonwealth
and its acceptance of the King as the symbol of the free association of its
independent member nations, and, as such, Head of the Commonwealth,
and (ii) the other members recorded their acceptance and recognition of
India’s continuing membership as a republic on this basis. India became
a republic within the Commonwealth in January 1950.
At the time it was envisaged that India would be a special case. Inevi-

The United Kingdom and Commonwealth 653

 tably, however, it set a precedent: what had been granted to India could
hardly be denied to others. In 1957 Malaya (now Malaysia) became
independent with its own monarch, the Yang di-Pertuan Agong, elected
from among the hereditary Malay rulers. In 1964 Zambia became inde-
pendent as a republic. In 1977 only a minority of Commonwealth countries
had the Queen as their head of State. 111 In her capacity as Head of the
Commonwealth she performs no constitutional function.
There is no other formal qualification (for example, size, ideology) for
admission to full membership.

Incidents ofmembership The governments of full members of the Common-

.

wealth are entitled to be represented at heads of government meetings,

which are held at irregular intervals - roughly every two years. These used
invariably to be held in London, but in 1966, 1971, 1973 and 1975 other
Commonwealth capitals were chosen. These governments are also entitled
to take part, on an equal footing, in other Commonwealth activities - for
example, meetings of Finance Ministers, educational programmes, and so
on. It can hardly be said that there is a clearly defined obligation to partici-
pate in any particular activity; though a country which decided not to co-
operate in Commonwealth affairs at all would (unless it was making a
temporary gesture of protest) probably withdraw from the Commonwealth
altogether. The conventional duty to consult other Commonwealth mem-
bers or to keep them informed on matters directly affecting their interests
is ill-defined and loosely interpreted. Members have indeed broken off

diplomatic relations with one another, 112 even gone to war with one another
(India and Pakistan) and still remained in the Commonwealth. Pakistan
left the Commonwealth only when recognition of the independence of

Bangladesh by the older States was imminent.

It is to be inferred that most of the conventions relating to equality of

status (for example, regarding the constitutional position of a Governor-

General) formulated in the era of Dominion status apply" to the new
members as well.

Retention of membership . If a member which has the Queen as head of

State wishes to become a republic or separate monarchy and remain
within the Commonwealth, it must obtain the concurrence of existing
members. The rationale of this rule, adopted when severance of allegiance
to the Crown was thought of as a serious step to take, has disappeared,
but the’ practice has survived. It was used as a means of driving South
Africa out of the Commonwealth in 1961. The Union wished, like India,
to become a republic and to retain its place in the Commonwealth.

111. Seep. 98.

112. The United Kingdom severed diplomatic relations with Uganda in 1976.
 Opposition developed among other Commonwealth members who ob-
jected strongly to South Africa’s racial policies; and there was so much
dissension at the meeting of Commonwealth Prime Ministers at which -

South Africa’s application for continuance of membership on the new

basis was discussed, that the Union Government withdrew its application,^
choosing the least of evils. Subsequently, in May 1961, South Africa be-
came a republic and its membership of the Commonwealth automatically
lapsed.

Termination of membership. This may occur in four ways: by loss of inde-

pendence, by voluntary secession, by lapse (on failing to seek, or failing
to obtain, the concurrence of the other members on becoming a republic
or a separate monarchy), and (probably) by expulsion. The only instances
of voluntary secession by countries already independent members of the
Commonwealth were the withdrawal of Eire (the Republic of Ireland) in
1949 and of Pakistan in January 1972. 113 Lapse of membership had
occurred onlyin the case of South Africa. There was no precedent for

expulsion and there are still no accepted rules governing such a matter,

but South Africa had in effect been forced out of the Commonwealth by
a procedural device, and even if it had abandoned the idea of adopting
a republican constitution there can be little doubt that it would have been
evicted by a majority decision soon afterwards. 114

1,5
Commonwealth relations

Over-enthusiastic descriptions of the Commonwealth - *a family of like-

minded nations, speaking the same political language and voluntarily co-
113. There have been other cases (for example, Burma in 1948) where a territory
ceased to be part of the Commonwealth on attaining independence .

The unilateral declaration of independence by Southern Rhodesia in November

1965, followed by Rhodesia’s adoption of a republican constitution in 1970, were
regarded as void in constitutional law. Southern Rhodesia was still a colony, over
which the United Kingdom was unable to exercise effective control, cf. Southern
Rhodesia Act 1965; Southern Rhodesia Constitution Order 1965 (S.I. 1965, No. 1952);
Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645.
114. The following countries have left (or, when eligible for membership, have
failed to join) the Commonwealth: Burma, Palestine (1948); Eire (1949); Sudan (1956);
British Somaliland (1960); South Africa, Southern Camcroons (1961); Maidive Islands
(1963); Yemen (1967); Pakistan (1972).
115. For a very Derek Ingram, The Commonwealth at Work
useful short survey, see
(1969). Sec also P<N. S. Manscrgh, Survey of British Commonwealth Affairs vols. 3 ,

and 4; The Commonwealth Experience (1969); J. D. B. Miller, The Commonwealth in

the World (3rd edn, 1965); Ali Mazrui, The Anglo- African Commonwealth (1967);
Patrick Gordon Walker, The Commonwealth (1962). A mass of factual information is
digested in the Year Book of the Commonwealth published annually by the Foreign
and Commonwealth Office in London.

The United Kingdom and Commonwealth 655

operating on matters of common concern - have led to a reaction.
.
.

Nowadays the Commonwealth is apt to be dismissed as a gigantic farce,

as the emperor who had no clothes, as the disembodied grin on the face
of the Cheshire cat. Relations between Commonwealth countries are in-
deed often disharmonious; conflicts of interest and differences of approach
may run deep. In international affairs the Commonwealth now bears
comparison with the United Nations writ small. And it is not and cannot
be an independent power factor in the modern world. As an entity, it
suffers from special disadvantages. For too many members, Common-
116
wealth relations have meant relations with the United Kingdom ; and
for too many people in the United Kingdom the Commonwealth ought to
behave like a grateful Empire. Unrealistic expectations have been unful-
Racial discord and restrictions on Commonwealth immigration into
filled.

the United Kingdom, Britain’s refusal to use force in order to quell the
Rhodesian rebellion, its intention to resume arms sales to South Africa, .

and Britain’s entry into the EEC in pursuit of its own have im-
interests

posed severe stresses on the Commonwealth relationships. So has the con-

tempt for democratic processes shown by rulers of some of the newer
member States - an attitude often accompanied by a proclivity for ve-
hement denunciation of the iniquities perpetrated or condoned by older
members.
The Commonwealth, as at present constituted, has no prospect of
developing supranational organs qualifying the sovereignty of its members.
small Commonwealth Secretariat, treading warily so as not to
risk
The
causing any affront to any member, symbolizes some of the weaknesses of
the Commonwealth. The Secretariat, incarnated by the Secretary-General,
is also a symbol that the
Commonwealth exists and that its members want
it to be a useful organization - the Secretariat is financed by agreed contri-
butions from individual members
- serving a limited range of agreed pur-
poses. The Commonwealth is in fact a minor consultative and cooperative
whose members have certain special relationships with
international body,
These special relationships are not easy to define at all pre-
one another.
representatives of Commonwealth governments in Common-
cisely. The
not Ambassadors or
wealth capitals are called High Commissioners,
access to government Departments other
Ministers, and some have direct
a distinct body of Common-
than the Foreign Office. But if we search for
wc shall find only a miscellany of statutory provisions, lacking
wealth law,
in uniformity, dealing with such
matters as the rendition of fugitive
professional qualifications, grants of
offenders, reciprocal recognition of
probate and so on; and differentiating, for
some purposes, the status of
membership in January 1972
116. The grounds on which Pakistan withdrew from
(sec p. 654) are significant.

656 Commonwealth Affairs

citizens of other Commonwealth countries from that of aliens. The
Commonwealth is not coextensive with the Sterling Area. Even before the
United Kingdom joined the European Communities and thereby became
obliged to replace Commonwealth preference by Community preference, 117
Commonwealth preference was not offered by all Commonwealth coun-
tries to imports from all other Commonwealth countries. The concept of

the Commonwealth as an economic, political or legal unit is illusory.

Yet the Commonwealth survives and is unlikely to suffer total disin-
tegration in the near future. Since not a single full member seceded volun-
tarily for over twenty-five years following 1949 (and six new full members
joined in 1970-77), there were surely advantages, tangible or intangible,
in belonging to such an organization. Or perhaps the matter should be
phrased more negatively; the obligations imposed by membership are
slight, and reasons offered for withdrawal are seldom, on balance, con-
vincing. Few members, however, would give an identical set of reasons for
wishing to remain. For a newly independent small country, the advantages
of membership may be considerable. By 1977 no fewer than twelve full
members of the Commonwealth had populations of under a million; and
Nauru, the special member, had a population of six thousand. Member-
ship offers these countries new windows on the world; a large fund of
factual information; an opportunity to reduce their sense of isolation and
to resist the gravitational pull of intrusive and powerful neighbours; pros-
pects of a helping hand from friendly countries in various parts of the
world if they are in political, administrative or economic difficulties; and
readier access to the London money market, technical assistance and
special financial aid. Mauritius, a small, overpopulated sugar island in the
Indian Ocean, a strategically important area, had the benefits of a defence
agreement with Britain, British diplomatic protection for its citizens in
countries where Mauritius had no representative of its own, a relatively
high guaranteed price under the Commonwealth Sugar Agreement for
much of its export crop, Commonwealth preference for most of the rest of
its exports, and development and budgetary aid from Britain. This is, per-

haps, an extreme example - and Mauritius was able to negotiate a reason-

ably advantageous association agreement with the EEC
when the support
for its sugar exports was jeopardized by Britain’s accession - but the
Commonwealth had become increasingly an organization attractive to
small States. Of the large members, Canada, Australia and New Zealand
still felt a certain sense of affinity with Britain and one another, and they

appreciated the importance of cultivating good relations with developing

countries. For some of the African and larger Asian members, the benefits
117. Subject to special transitional safeguards for New Zealand’s exports and for the
sugar-producing Commonwealth countries.

The United Kingdom and Commonwealth 657

of membership were becoming more problematical; one of them might be
the possibility of influencing the external policies of the ‘western’ mem-
bers; another, a feeling that withdrawal would place them at a disadvantage
vis-a-vis rivals who remained within the organization.
The attitudes struck at plenary sessions of meetings of Commonwealth
heads of government are not characteristic of the general pattern of
Commonwealth relations. Functional cooperation and interchange at
official and unofficial levels are less conspicuous but more impressive.
Commonwealth activities at the official level range over a very wide field
- from occasional conferences of Finance Ministers or Law Ministers to
the work of specialized operational, consultative or advisory bodies such
as the Commonwealth Telecommunications Organization, the Common-
wealth Agricultural Bureaux and the Commonwealth War Graves
Commission. Educational cooperation, illustrated by the recruitment of
university teachers through the Inter-University Council, the Association of
Commonwealth Universities, the schemes for the interchange of teachers,
the award of Commonwealth fellowships and scholarships and the training
of Rhodesian Africans abroad, has been an asset to nearly every Common-
wealth country. At the semi-official and unofficial levels, there are the
numerous conferences organized by the Commonwealth Parliamentary
Association; Commonwealth Legal Conferences; arrangements for pro-
fessional conferences and exchanges of personnel, now promoted or
subsidized by the Commonwealth Foundation (established in 1966); and
the work of a host of voluntary bodies, mainly in the United Kingdom,
which diffuse information 118 and good will and sometimes perform services
of a more practical utility to Commonwealth countries and their citizens.

118. In January 1973 an official conference of Commonwealth Law Ministers agreed

that the role of the tiny Legal Division of the Secretariat should be expanded, so
as to enable it to supply information about legal developments (for example, on
statutory consumer protection) in particular Commonwealth countries at the request
of others. It would work in collaboration with the Commonwealth Legal Advisory
Service (see H. H. Marshall (1972) 21 I.C.L.Q . 435) run by the British Institute of
International and Comparative Law.

658 Commonwealth Affairs

 Appendix
European Community
Institutions: A Note
1

The European Coal and Steel Community (EC SC) was established in
2
1952; the European Economic Community (EEC) 3 and the European
Atomic Energy Community (EURATOM) 4 were born in 1958; in 1969
the institutions of the three Communities were merged. The members of
the Communities were Belgium, West Germany, France, Italy, Luxem-
bourg and the Netherlands. On 1 January 1973 the United Kingdom, the
Republic of Ireland and Denmark acceded to the Communities, and
various modifications of the Treaties were adopted. 6 Here we offer an all
too brief sketch of the functions of the principal Community institutions.
A number of comments on the probable impact of Community member-
ship on United Kingdom constitutional law have already been made in
this book. 7
The principal treaty is the EEC Treaty. Article 2 states that the EEC
is to establish a common market and to approximate the economic policies
of member States with a view, inter alia to promoting closer relations
,

within the Community. Article 3 specifies the activities of the Community

in more detail. They include the elimination of customs duties and quanti-
tative restrictions in trade between member States; the establishment of
a common external tariff and a common commercial policy towards other
countries; freedom of movement of persons, services and capital between

1. Three very helpful short studies are P. S. R. F. Mathijsen, A Guide to European

Community Law (2nd edn, 1975); D. Lasok and J. W. Bridge, Introduction to the Law
and Institutions of the European Communities (1973), and L. Collins, European Com-
munity Law in the United Kingdom (1975). See also Anthony Parry and Stephen Hardy,
EEC Law. For a larger work of reference, see Alan Campbell, Common Market Law.
2. Cmnd 4863 (1972) (Treaty of Paris).
3. Cmnd 4864 (1972) (Rome Treaty).
4. Cmnd 4865 (1972).
5. Cmnd 4866 (1972).
Cmnd. 4862 (1972), Vols. 1 and 2 (Treaty of Brussels). These instruments pre-
6.

supposed that Norway would also join. In the event Norway did not join, the proposal
having been rejected at a referendum. The instruments of accession consequently had
to be modified.
7. See pp. 42-3, 77-81, 126, 127, 218, 272-3, 274-5, 285, 320, 328-9, 341, 411-17,

420, 615, 637-8, 657.

European Community Institutions: A Note 659

member States; the adoption of common policies
for agriculture and
transport; the creation of a system to prevent the
distortion of com-
petition, and the approximation of the laws of member
States to the extent
required for the function of the common market.
In October 1972, the heads of government of the nine
existing and
prospective member States agreed in principle that a full economic and
monetary union should be established by the end of 1980, 8 but
there is
now no prospect whatever of that time-limit being met. No
corresponding
commitment to constitutional or political union was undertaken.
But if
supranational decisions are to be taken over an increasing range
of politic-
ally contentious issues, it is hard to believe that this will be
feasible without
closer political integration.
The main areas hitherto covered
by rules of Community law are agri-
culture, foodstuffs and customs duties and aspects of indirect
fisheries;
taxation; aspects of the law relating to companies, bankruptcy, patents and
registered designs, monopolies and restrictive trade practices, and miscel-
laneous features of commercial law; social security; immigration; land
transport regulation; industrial relations, and the supply and distribution
of coal, and nuclear energy.
steel
Community law comprises 9 the primary Treaties, and ancillary agree-
ments entered into by the member States; 10 secondary legislation by Com-
munity organs; 11 administrative acts and decisions by Community organs,
and decisions and other pronouncements by the Court of the Communities
(the European Court of Justice). It is distinct from public international law
and from the national (municipal) law of member States. But it is inter-
woven with municipal law; it is applied mainly by the courts of member
States; certain rules of Community law (notably regulations made by the
Council of Ministers or the Commission) are ‘directly applicable’ 12 in the
sense that, of their own force, they create legal rights and duties enforce-
able in municipal courts. According to Community law doctrine 'as ex-
pounded by the European Court of Justice, Community law prevails over
national law (even national constitutional law) to the extent that they are
inconsistent withone another. Cases of inconsistency are not confined to
conflictsbetween ‘directly applicable’ Community law and municipal law;
they arise whenever rules of Community law (including provisions of the

8. For the text of the communiqu6, see The Times , 23 October 1972.
9. See also pp. 42-3, above.
10. The Communities also have treaty-making competence: EEC Treaty, articles
210 Re European Road Transport Agreement [1971] C.M.L. Rep. 335), 228, 238.
(see
11. Forty-two volumes of Community regulations and directives then in force were
published in English in 1972. Community legislation, though published in the Official
Journal of the Communities, is not as accessible as are statutory instruments.

12. See Bchr (1970) 19 I.C.L.Q. 257.

660 Appendix
Treaties, directives issued by the Council or the Commission, or decisions
of the Court) are incompatible with municipal laws, and inconsistency may
exist without direct conflict if Community rules evince an intention to cover
the whole field of the activity in question. The European Communities
13

Act 1972 provides that the Community Treaties shall have effect in United
Kingdom law (section 1), that enactments ‘passed or to be passed* shall
‘be construed and have effect* subject to the preceding provisions (section
2(4)), and that the decisions of the European Court and the principles laid
down by it (including, of course, the supremacy of Community law and the
consequential denial of the legal doctrine of parliamentary sovereignty)
shall be applied by United Kingdom courts. Attention has already been
drawn to the incompatibility of some of these provisions with basic
14
constitutional principles.
The principal decision-making and legislative organ of the Communities
is the Council of Ministers, each member one representative.
State having
There is an ancillary Committee of Permanent Representatives, composed
of national officials of ambassadorial status. Under the Treaties, decisions
by the Council are usually taken only following the submission of a pro-
posal by the Commission. Depending on the subject-matter, the decision
is to be taken either (i) by a simple majority; or (ii) by a ‘qualified

majority*, special weightage being given to the larger member States; or

(iii) unanimously - where the Council wishes to amend a proposal
by the
Commission Treaty, article 149). In practice, though not in sULi
(EEC
is at issue, the decision of the Council
law, where any vital British interest
will have to be unanimous; this is to be inferred from the
interpretation

given to the Luxembourg Agreement of 1966. 13

And this is the main reason
why United Kingdom Ministers have asserted that membership of the
Communities will not a relinquishment of national sovereignty.
entail
The Commission consists of thirteen members, one from each of the
member States and two from each of the larger. Its members are
smaller
Community officials (though most of them have been involved in national

13. On attitudes of national courts towards the doctrine of Community

law su-
premacy, see Behr (1971) 34 Mod. L. Rev. 481 ; the Belgian 'Ski' case [1972] C.M.L.
Rep. 330.
14. At pp. 77-81. A possible (though not the only) positioa for a United
Kingdom
court to adopt could be that parliamentary sovereignty has been restricted by the fact
of the United Kingdom’s accession but that Parliament retains an ultimate overriding
power to legislate so as to exclude the United Kingdom.
15. For the Agreement see Mathijsen, pp. 178-80; Lasok and Bridge, pp.
118-21. The
Agreement does not record an agreement to this effect, but rather an agreement be-
tween France and the other member States to differ on this crucial point; the United
Kingdom appears to have adopted the same view as France on matters affecting vital
national interests.

European Community Institutions: A Note 661

politics; the two British Commissioners, Mr Roy Jenkins (the President
of the .Commission) and Mr Christopher Tugendhat, were formerly
members of the House of Commons) and they owe their loyalty to the
Communities, not to the government of their own country. The Com-
mission is pre-eminently a supranational rather than an international body:
initiating, supervising, coordinating, legislating within narrow limits, im-
posing penalties on enterprises breaking competition rules and conducting
elaborate dialogues with the Council of Ministers.
The European Assembly consists of members chosen by national
Parliaments from their own members. It is a deliberative, consultative and
scrutinizing body, working largely through specialist committees. It has no
legislative is answerable to it and it has the
powers, but the Commission
ultimate authority to remove themembers of the Commission on a motion
of no confidence passed by a two-thirds’ majority. It is hoped that direct
elections to the Assembly will take place in 1978, replacing the system of
parliamentary nomination.
16
The European Court of is composed of eleven judges; the
Justice
British judge was chosen from the Scottish Court of Session. The Court is
fashioned according to continental models; its procedure is inquisitorial,
and written submissions by counsel are more important than oral argu-
ment; provisional conclusions are prepared by an Advocate-General, an
officer who has no counterpart in the United Kingdom; in interpreting
legal instruments the Court considers preparatory materials and not
merely the bare judgments are terse, replete with statements of
text; its
general legal principle; no dissenting opinion is delivered or announced.
Its jurisdiction is wide-ranging. For example, it is an ‘administrative court’
determining the validity of the acts and decisions of Community organs
broadly according to French administrative law doctrine (EEC Treaty,
article 173); it hears appeals against penalties imposed by the Commission,
disputes between the Communities and their officials (or dismissed offi-
cials), claims in tort and contract against the Communities, and proceedings

against Community organs for wrongful failure to act. In constitutional

law itsmost important head of jurisdiction is to give preliminary rulings
on the and the validity and interpretation of
interpretation of the Treaties
acts (including regulations and directives) of Community organs (EEC
Treaty, article 177). A national court or tribunal ought not to refer such

16. See D. G. Valentine, The Court ofJustice of the European Communities', Gerhard
Behr, Judicial Control of the European Communities', L. J. Brinkhorst and H. G.
Schermers, Judicial Remedies in the European Communities', A. W. Green, Political
H. Wall, The Court of Justice of the European Commu-
Integration by Jurisprudence’, E.
English in The Common Market Law Reports,
nities . Selected judgments are reported in
together with important decisions of national courts on matters of Co mmuni ty law.

662 Appendix
 a question unless its decision on the matter before it depends on the
determination of that question. Courts and tribunals of last instance are
obliged to refer such a question unless the correct interpretation is quite
clear.Probably tribunals such as the national insurance commissioners,
whose decisions are reviewable by certiorari (though not on appeal), are
not tribunals of last instance for the purpose of article 177. Rules of court
have been made prescribing the procedure for making references to the Euro-
pean Court from superior courts 17 but not stating the principles governing
references. Those principles are, by implication, to be regulated by Com-
munity law doctrine. It is arguable that references ought to be made by
lower courts if possible; this will reduce the costs of the parties and
minimize the delay, which will in any event Tbe of several months’ duration.
The Court abstains, as far as possible, from interpreting national
(municipal) law. Its rulings are binding courts, 18 which have
on national
then to decide how (if of municipal law can
at all) the relevant provisions
be reconciled with the European Court’s pronouncements. 19
The Court, like the Commission, has generally sought to extend the
frontiers of Community law and to emphasize the concept of Community
law supremacy. If the national authorities fail to comply with a ruling by
the Court, the Commission (or another member State) may bring the
matter before the Court, which may deliver a judgment declaring that
the member Slate concerned has failed to fulfil its obligations under the
Treaties (Treaty, articles 1 69-71 ). 20 No coercive sanction is provided
against a defaulter, except under the EC SC Treaty (article 88) which em-'
powers the Commission, with the concurrence of two-thirds of the Council,
to withhold from that member State moneys due to it and to authorize
other members to subject it to fiscal sanctions.
In 1974 the heads of government decided to meet three times a year, at
what has become to be known as the ‘European Council’. 21
The Communities resemble a ‘functional’ federation, but the member
States retain full international personality. The Communities also resemble
a confederation, but they are more closely knit than a typical confedera-
tion, and their organs have authority to confer rights and impose obliga-
tions directly on the citizens of member States.

17. S.I. 1972, Nos. 1786, 1787, 1898.

18. Except where the Court can be expected to depart from its own rulings; it is not
absolutely bound by its own decisions.
19. See pp. 79-80, above.
20. In one notable case {Re European Road Transport Agreement (note 10)) brought,
under another head of jurisdiction, the Commission took proceedings against the
Council for alleged breach of Community obligations.
21. See Mathijsen, op. cit., p. 246.

European Community Institutions; A Note 663

Table of Oases

Abadesa,The (1968) 328

Abrahams v. Cavey ( 968) 474
1

Adams v Adams (1971) 129

Adams v. Naylor (1946) 602
Adams v. War Office (\955) 604
Addis v. Crocker { 1961) 360
Adegbenro v. Akintola (1963) Nigeria 52,130
v. Metropolitan Police
Commissioner (1969) 128, 12*
Mushrooms Ltd (1972)
Agricultural etc. Training Board v. Aylesbury
Agricultural etc. Training Board v. Tfertf (1970) 552
(196 g™
JPr£so#i Governor, exp
>
aw (1969) see i*. v. Sr/xto/i
.

At t. -Gen. of Sierra Leone (1970) 442

/4/car v.
Alderson v. Booth (1969) 445
Aldred v. Miller (1924) Scotland 487
Corporation's Patent, Re (1970) 130
Allen v. Flood 299 nQim 30 q
AmJgtmuaedSodetyofJUdh^
362
Ambardv. Att.-Cen.for Trinidad andTobago (1936)
Amphi trite v. 7?. (1921)
Rederiaktiebolaget
Amphitrite case (1921) see
Ampthill Peerage Case ( 1976) 298
293 532,558,
127.29J.3J
127
Anisminic Ltd v. Foreign
Compensation Commission (1969)

Fedki Veeilen Ltd (1974) 78

AwttoXUn del Gen S.A. e.

5 ®- 38ii87

554, 557, 561

SIS— «*.
Ashby v. White 1703) 238,316
(.

Lacej' (1973) 394

v.
0741 578
Environment, (1974) a
v Secretary of State for the
Corporation (1948) 486,
^LiProvindalPletur, Houses Ltd v. Wednesbury

University case (1969) see R. v.

Atkinson v. C//hW tates Government
(1969) 428
^ *<^ 1969)

Att.-Gen.\.Chaudry( 1971) 592

476
Att.-Gen. v. Clough (1963) 361,

Table of Cases 665

Att.-Gen. v. Colchester Corporation (1955) 591
Att.-Gen. v. De Keysets Royal Hotel Ltd (1920) 1 16, 117, 131, 237, 504, 598
Att.-Gen. v. De Winton (1906) 388
Att.-Gen. v. Fulham Corporation (1921) 392, 551
Att.-Gen. v. Harris (1961) 592
Att.-Gen. v. Jonathan Cape Ltd (1976) 138, 169, 457, 468,
Att.-Gen. v. London and Home Counties Joint Electricity Authority (1929) 85
Att.-Gen. v. London Weekend Television Ltd (1973) 361
Att.-Gen. v. Melville Construction Co. (1968) 592
Att.-Gen. v. Mulholland {1962 ) 361 , 476
Att.-Gen. v. Smethwick Corporation (1932) 392, 551
Att.-Gen. v. 27/Me.y Newspapers Ltd (1974) 361, 468, 592
Att.-Gen. v. (1840) 388
Att.-Gen. v. United Dairies {1921) 41, 274, 338, 505
Att.-Gen. for Australia v. i?. and the Boilermakers' Society ofAustralasia (1957)
now. i?. v. ex />. Boilermakers' Society (1956) Australia 38, 355
Att.-Gen. for Canada v. Cain (1906) 123
Att.-Gen. for Canada v. Halle t & Carey Ltd (1952) 339
Att.-Gen. for Ceylon v. Silva (1953) 600
Att.-Gen. for N.S. W. v. Perpetual Trustee Co. (1955) 372
Att.-Gen. for N.S. W. v. Trethowan (1932) 87, 644
Atti-Gen.for Ontario v. Att.-Gen. for Canada (1947) 46
Att.-Gen. of Ceylon v. Livera (1963) 305
Att.-Gen. of the Gambia v. N'Jie (1961) 584
Att.-Gen. of the Republic v. Mustafa Ibrahim (1964) Cyprus 68
Att.-Gen. exrel. McWhirterv. IBA (1973) 213, 214, 367, 465, 554, 591, 593
Anbrey-Fletcher's case (1969) see R. v. Aubrey-Fletcher ex p. Thompson (1969)
y

Australian Banks Nationalisation case (1950) see Commonwealth ofAustralia v.

Bank of N.S. W.
Australian Communist Party v. Commonwealth ofAustralia (1 951) 354
Australian Woollen Mills Ltd v. Commonwealth oj Australia (1956) 601
Ayr Harbour Trustees v. Oswald (1 883) 396

Backhouse v. Lambeth L.B.C. (1972) 582

Bagg's case {1615) 589
Bailey v. Williamson (1873) 486
Bainbridge v. Postmaster-General (1906) 602
Baker v. Carr (1962) U.S.A. 234
Balewav. Doherty { 1963) 355
Balogh v. St Alban's Crown Court (1975) 361
Banks v. Transport Regulation Board (1968) Australia 567
Bank voor Handel en Scheepvaart v. Administrator ofHungarian Enemy Property
(1954) 121
Barnard v. Gorman (1941) 445
Barnard v. National Dock Labour Board (1 953) 594
Barraclough v. Brown (JL897) 595

666 Table of Cases

Bastable v. Little (1907) 449
Bate's case ( 1 606) 69
Bates v. Lord Hailsham ( 1 972) 570, 573
Battelley v. Finsbury B.C. (1958) 386
Beach v. Freeson (1972) 307 *

Beatty v. Gillbanks (1882) 448, 486, 493-4

Bedfordshire County Council v. Secretary of State for the Environment (1972)
388
Belfast Corporations. O.D. Cars Ltd ( 1960) 28
Bendles Motors Ltd v. Bristol Corporation (1963) 560
Betts v. Stevens (1910) 449
Bilston Corporation v. Wolverhampton Corporation (1942) 86
Blackburn y. At t. -Gen. (1971) 71 75, 1 15
,

Blackpool Corporation v. Locker (1948) 330, 395 61 ,

Block Reference case (1949) see R. v. Paddington & St Marylebone Rent Tribunal
(1949)
Board of Education v. Rice (1911) 565
Board of Trade v. Temperley Steam Shipping Co. (1927) 601
Bognor Regis U.D.C. v. Campion (1972) 395
Bombay Province v. Bombay Municipal Council (1947) 119
Bowles v. ifcw/c 0/ England (1913) 86, 275
Bowman v. Secular Society Ltd (1 9 1 7) 474
itoyce v. Paddington Corporation (1 903) 593
Boyer ( William) & Sons Ltd v. Minister of Housing and Local Government (1968)
546
Bradbury v. Enfield L.B.C. (1967) 397, 593, 596
Bradlaugh v. (1883) 3 1
Bradlaugh v. Gos.s<?//(1884) 31 1, 312, 315, 316, 354
v. A.E.U. (1971) 513,569
Bribery Commissioner v. Ranasinghe (1965) 85,89
British Broadcasting Corporation v Jete (1965) 114,121,213
.

British Coal Corporation v. i?. (1935) 46, 75, 647

British Dredging (Services) Ltd v. Secretary of State for Wales (1975) 561
British Oxygen Co. v. Board of Trade (1971) 576
British Railways Board v. Pickin (1974) 82-3, 84? 267.
Broadmayne The (1916) 504
,

Brookdene Investments Ltd v. Minister oj Housing and Local Government (1970)

557
Broome v. Broome (1 955) 61
Broome v. Cassell & Co. (1972) 397, 475
Buck v. At t. -Gen. (1965) 130
tfwc/cofo? v. G.£.C. (1971) 371
Building & Civil Engineering Holidays Scheme Management Ltd v. /W
(1966) 604
Buhner (H.P.) v. /. Bollinger S.A. (1974) 78
Burden v, Rigler (1911) 487

Table of Cases 667

Burdett v. Abbot (\U\) 315,318
Burmah Oil Co. v. Lord Advocate (1965) 38,43,115,116 136
’ ’
354 ’ 504
Buron v. Denman (1848) 133, 134
l
Bushel 's case (1670) 360
Butler vBoard of Trade (1970) 460
Button D.P.P. (1966) 497
v.

Buxton v. Minister oj Housing and Local Government

(1961) 545

Calder (John) Publications Ltd v. Powell (1965) 482

Cal vm 's case ( 1 607) 405
Cambridgeshire and Isle oj Ely C.C. v. Rust (1972) 395
Campbell v. Hall (1774) 114, 124, 637, 643
Campbell v. Paddington Corporation (1911) 397
Canon Selwyn, ex p. (1872) 71
Carltona Ltd v. Commissioners of Works (1 943) 46, 1
81 339 ,

Carl Zeiss Stiftwig v. Rayner and Keeler Ltd (No. 2) (1967) 129
Carr v. Fracis Times and Co. (1 902) 1 32
Cte? oj Impositions ( 1 606) see Bate's case (1606)
Case of Monopolies ( 1 602) 119
Case ofProclamations (1611) 40,69,113,321
Case of Ship money (1637) see R. v. Hampden (1637)
Castioni, Re (\%9l) 429
C.E.G.B. v. Dunning ( 1 970) 595
Central Electricity Generating Board v. Jennaway (1959) 595
Ceylon University v. Fernando (1960) 568, 571
Chandler v. /)./’./>. (1964) 115, 196, 354, 471
Charge to the BristolGrand Jury (1832) 497
C//tv/o’ v. 968) 71,130
( 1

Cheng v. Governor of Pentonville Prison (1973) 429

Chester v Bateson (1920) 339,340
C7//c Fashions ( H/otf Wales) Ltd v. (1 968) 458, 459, 460
C/z/V/tf Navigation Co. v. Att.-Gen. (1932) 122, 274, 423
Christie v. Leaclunsky( 1 947) 446

Church oj Scientology oj Calijornia v. Johnson-Smith (1 972) 308

Churchman v. Joint Shop Stewards Committee (1972) 354, 366
Churchward v. /?. ( 1 865) 599
City oj London v. Wood (1701) 70
Civilian War Claimants' Association Ltd v. 7?. (1932) 127
Clarke (1958) N. Ireland 252
Clarke v. Bradlaugh (1883) 312
Clayton v. lltjfron (1961) Australia 85
Clifford and O'Sullivan , (1921) 501
C/wc/i v. /.tf.C. (1974) 581
Cohen Properties Ltd v. Minister oj Housing and Local Government (1971) 554,
557
Collins v. Minister of the Interior (1957) S. Africa 88

668 Table of Cases

Collyrnore v. Att.-Gen. (1970) 566, 613
Commercial and Estates Co. of Egypt v. Board of Trade (1925) 131, 504
Commercial Cable Co. v. Government oj Newfoundland (1916) 47, 599
Commonwealth ofAustralia v. Bank ofN.S. W. (1 950) 14
Coney v. Choyce (1975) 552
Congreve v. Home (1976) 578, 579
Continental Sprays Ltd v. Minister of Housing and Local Government (1968) 546
Conway v. Rimmer (1968) 114, 468, 578, 610-13
Cook v. Sprigg (1899) 136
Cookv. Ward (1877) 386
Coomber v. Berks JJ ( 883) 372
Cooper v. Hawkins ( 1 904) 1 20
Cooper v. Wandsworth Board of Works (1 8 63) 565, 567
Cooper v. Wilson (1937) 594, 596
Copyright Owners Reproduction Society v. E.M.I. Australia ) P/>£ztf(1958)
(.

Australia 47,75
Cory ( William) & Son Ltd v. Cz'/y ofLondon Corporation (1951) 73, 396
Carta v. ENEL (1964) Europe 79
Cozens v. Brutus (1973) 477, 496
Crompton (Alfred) Amusement Machines Ltdv. Customs and Excise Commissioners
(No. 2) (1974) 613
CroHTz Lands Commissioners v. Ptf^c? ( 1 960) 601
Comings v. Birkenhead Corporation (1972) 576, 582, 596
Customs and Excise Commissioners v. Cure & DeeleyLtd (1962) 327, 338, 340

P. v. N.S.P.C.C. (1977) 613

D.,Pe(//z/^)(1970) 613
Dallisonw. Cajfery (1965) 447
Damodhar Gordhan v. Deoram Kanji (1 876) 126
DameVs case (1627) 452
David v. Abdul Coder (1963) 397, 606
jDtfv/s v. (1936) 450, 459
Dawkins v. Paulet (1869) 200
Dawkins v. Rokeby (1 875) 200
Day v. Savadge (1614) 70
Deakin v. Milne (1 882) Scotland 493
De Dohsi v. P. (1886) 197
Zte v. ^ tt.-Gen. ofNatal (1907) 424
De Keyser case (1920) see Att.-Gen. v. De Keysets Royal HotelLtd (1920)
Delhi Laws Act,Re (195 1) India 327
De Morgan v. Metropolitan Board oj Works (1 880) 486
Department ofHealth and Social Security v. Walker Dean Walker £/<i(1970) 595
Derrick v. Customs and Excise Commissioners (1972) 483
Devlin v. Armstrong (1971) Northern Ireland 446, 497, 500
Dibble v. Ingleton ( 1 972) 449
Dillon v. Balfour ( 1887) 305

Table of Cases 669

 .

Dimes v. Grand Junction Canal Proprietors (1852) 562

Dingle v. Associated Newspapers Ltd (1960) 308
Dobree v. Napier (1836) 132
Donnelly v. Jackman (1970) 444,450
Dormer v. Newcastle-upon-Tyne Corporation (1940) 396
Dorset Yacht Co. v. Home Office (1970) 606
Dowty Boulton Paul Ltd v. Wolverhampton Corporation (No. 2) (1973) 582
P.P.P. v.A.&B.C. Chewing Gum Ltd (1968) 480, 482
D.P.P. v. Luft (1976) 250
D.P.P.V. Whyte ( 1972) 481,482
Z)r Bonham's case (1610) 70
Duncan v. CammelULaird and Co. (1942) 608, 610
Duncan v. Jones (1936) 449, 489, 493-6
Dunn v. Macdonald (1 897) 600
Dunnv.R.(im) 190
Durayappah v. Fernando (1 967) 567, 568, 569, 588
Dutton v. Bognor Regis U.D.C (1972) 397, 398
Dysony. Att. -Gen. (1911) 594

Ealing Corporation v. Jbwes (1959) 583

Ealing L.B.C. v. Pace Relations Board (1972) 352, 398, 434, 596
Par/ v. 5/a/cr a/?*/ Wheeler ( Airlyne) Ltd (1973) 570
Earl ofAntrim's Petition (1967) 242, 289
Par/ a/ Shaftesbury's case ( 1 677) 317
Pas/ Elbe case (1956) see Smith v. East Elbe R.D.C. (1956)
East Suffolk Rivers Catchment Board v. Kent (1941) 397
Edinburgh and Dalkeith Rly v. Wauchope (1 842) 83
Egan v. Macready (1921) Ireland 503
Egger v. Chelmsford (1965) 307
Electricity Commissioners case (1924) see P. v. Electricity Commissioners (1924)
Elias v. Pasmore (1 934) 45 8 460 ,

Eliot's case (1629) 304,312

p//en Street Estates Ltd v. Minister ofHealth (1934) 73, 75
P/Z/sv. Dubowski (1921) 467,575
P///s v. Pome (1953) 609
Empress v. Tucker (1882) India 493
Empson v. Pw/Z/z (1966) 128
Enahoro's case (1963) see R. v. Brixton Prison Governor , ex p. Enaharo (1963)
Enderby Town F.C. Ltdv. Football Association Ltd (1971) 572, 596
Engelke v. Musmann ( 1 928) 115
Entick v. Carrington (1765) 68, 131, 444, 458
Errington v. Minister of Health (1935) 542, 544
Escobedo v. ///mo/s (1964) U.S.A. 450
Eshugbayi Eleko v. Government of Nigeria (1928) 455
Essex C.C. v. Ministry ofHousing and Local Government (1967) 541 570, 582
,

European Road Transport Agreement, Pe (1971) Europe 79, 660, 663

670 Table of Cases

Everett v. Griffiths (1921) 360
Export Tax on Art Treasures (No. 1), Re (1969) Europe 78, 79
Export Tax on Art Treasures (No. 2), Re (1972) Europe 78, 79, 80
Extradition Act 1870, ex p. Treasury Solicitor Re (1969) 429 ,

Fagernes The (l 927) 118

,

Fairmount Investments Ltd v. Secretary of State for the Environment (1976) 543,
571
Falmouth Boat Construction Co. v. Howell (1950) 389
Fawcett Properties Ltd v. Buckingham C.C. (1961) 580
Felton v. Callis (1969) 1 1

Ferguson v. Earl oj Kinnoull (1842) 360

Field v. Metropolitan Police Receiver (1921) 496
Fishery. Oldham Corporation (1930) 372, 397
Fletcher's Application /te (1970) 5 82
,

Flockhart v. Robinson (1950) 489

Fox v. Stirk (1910) 233
Franklin v. Att.-Gen. (1974) 599
Franklin v. Minister of Town and Country Planning (1948) 541 , 562
Fraser v. Balfour (1918) 200
Fraser v. Mudge (1975) 572
Fry, ex /7. (1954) 567,589
Fulham case (1921 ) sec Att.-Gen. v. Fulham Corporation (1921)
Furnell v. Whangarei High Schools Board (1973) 570

Gaiman v. National Association for Mental Health (1971) 568

Gam v. Gfl/V? ( 1962) 609
Gallagher v. Fos/ Office ( 1 970) 582
Garfinkels. Metropolitan Police Commissioner (1971) 458
Gelberg v. Mz/fer (1961) 446, 449
Gfcwii v. ./owes (1970) 449, 458, 460, 591
Gibson v. Lord Advocate (1975) 72
Gideons JFtf/«r&/zr(1963)U.S.A. 450
.

Givaudan & Co. v. Minister oj Housing and Local Government (1967) 544, 552
Glasbrook Bros. v. Glamorgan C.C. (1925) 122, 371
Glasgow Corporation v. Central Land Board (1956) 121, 609
Glossop v. Heston and Isleworth Local Board (1 879) 591
G/ywz v. University o/Keele (1971) 568, 573
Goddenv. Ilales ( 1 686) 69
G0#//z v. Donnelly (1881) 305
Golden Chemicals , In re (1916) 579
Goldsmith v. Pressdram Ltd (1976) 474

Gordondale Investments Ltd v. Secretary of State for the Environment (1971) 552
Gould v. Stuart (1896) 1 90
Gouriet v. National Union of Postal Workers (1977) 593
Grad v. Finanzamt Traunstein (1971) Europe 78

Table of Cases 671

Grant v. Secretary ofState for India (1 877) 196
Great Central Rly Co. v. Bates (1921) 459
Green v. Mortimer (1861) 71
Greene v. Secretary (1942) 453, 454, 505
Gregory v. Camden L.B.C. (1966) 593
GWeve v. Douglas-Home (1965) Scotland 251
Grosvenor Hotel London (No. 2), ite (1965) 512, 610
,

Hall & Co. v. Shoreham-by-Sea U.D.C. (1964) 338, 551, 578,

580, 582, 594, 614
Hamilton v. Secretary of State for Scotland (\912) Scotland 558
Hammersmith B.C. v. Boundary Commission for England
{ 1954) 236
Hampshire C.C. v. Shonleigh Nominees Ltd (1910) 592
Hannamv. Bradford Corporation (1970) 563, 564
Hanratty v. Lord Butler (1971) 115
Hanson v. Radcliffe U.D.C. (1922) 594
Harper v. Home Secretary ( 955) 236, 606 1

Harris v. Donges (1952) S. Africa 75, 88

Harris v. Minister oj the Interior (1952) S. Africa 75, 88
Harrison v. Duke of Rutland (1 893) 487
Hartnell v. Minister oj Housing and Local Government (1965) 582
ifay//>#.y(No. l),i?<?(1958) 455
Hastings (No. 2), (1959) 455
Hastings (No. 3), (1959) 455
Hauptzollatnt Hamburg Case ( 1970) Europe 79
Healey v. M ////Vs /tv 0 / Health (1955) 594
Heddon v. £wwj (1919) 200
Hedley , Byrne & Co. v. Heller & Partners Ltd (1964) 390
Herring v. Templcman ( 1973) 568, 569
Hibernian Property Co. Ltd v. Secretary of State for the Environment (1973)
543, 571
Hickman v. Maisey (1900) 487
Hill v. Parsons (C. A.) & Co. (1972) 570, 594
Hinchlijfe v. S/itf/dwi (1955) 449
Hinds, exp. (1961) 453
77. («// 7//A?///), 7te (1967) 410, 568, 573
Horner v. Cadman (1886) 488
Horrocks v. Lo we (1975) 581
Hotel and Catering Industry Training Board v. Automobile Proprietary Co.
(1969) 337
Houlden v. 6V///7// (1850) 360
Hounslow L.B.C. v. Twickenham Garden Developments Ltd (1971) 569
Hoveringham Gravels Ltd v. Secretary of State for the Environment (1975) 578,
579
ww</ v. Gossett (1845) 317
Howell v. Falmouth Boat Construction Co. (1951) 389, 577, 600
Hubbard v. Pitt (1976) 487

672 Table of Cases

 .

Hughes and ValePtyLtdv. Gair (1954) Australia 88

Humphries\. Connor (1864) Ireland 492
Hunt v. Broome (1974) 487
Hussien v. Chong Fook Kam (1970) 445
Huth v. Clarke ( 1 890) 386

Ibralebbe v. R (1964) 47, 75, 138

Imported Thai Sand Flour, Re (1971) Europe 79
Inland Revenue Commissioners v. Pearlberg (1953) 595
Institute ofPatent Agents v. Lockwood ( 1 894)
341
v. Customs and Excise
International General Electric Co. oj New York
Commissioners (1962) 607
Europe 79
Internationale Handelsgesellschaft Case (1972) and (1974)
Islington Vestry v. Hornsey U.D.C. (1900) 395
Iveaghv. Martini 1961) 487
557
Iveagh v. Minister of Housing and Local Government (1962)

Jackson Stansfield& Sons v. Butterworth (1948) 340

'

Topham (1689) 67
Jayawardane v. Silva ( 1970) 587
Jearyv. Chaley R.D.C. (1973) 558
New Zealand etc. Marketing Board (1967) 562, 572
Jeffs v.
Jenkins v. Att.-Gen. (1971) 115
Jilani v. State oj Punjab ( 1 972) Pakistan 67, 68, 502
John v. Rees (1970) 1 47 247 568 , ,

John Lewis & Co. v. Tims (1952) 447

Johnson v. Sargant & Sons (191 8) 332 , coo
Health (1947) 542, 582
Johnson (B.) & Co. ( Builders ) Ltd v. Minister of
Johnstone v. iW/tf r (1921) 135, 424
Johnstone v. Sutton (1786) 200
Jordan v. Burgoyne (1963) 478, 495
469
Joyce v. AdP-P. (1946) 43, 73, 423, 424,

K (Infants), Re (1965) 566

Kamara v. D.P.P (1974) 457
.

Kariapper v. Wiiesinha (1968) 38,299,354

Katzv. U.S. (1967)U.S.A. 457
Keenan, Re (1972) 456
Keighley v. Zfc?// ( 1 866) 202
Kenlin v. Gardiner (1 967) 446, 450
596
Kensington & Chelsea L.B.C. v. Wells (1973)
Kent v. Dulles (1958) U.S.A. 327, 426
Kingv. R. (1969) 458
504
King's Prerogative in Saltpetre, Case of (1606)
(Kent) Ltd v. C.C. (1971) 551 580 ,
Kingsway Investments
479,484
(Publishing, Printing and Promotions) Ltdv
. D.P.P. (1973)
Knuller

Table of Cases 673

 .

Kodeeswaran v. Alt. •‘Gen. of Ceylon (1970) 190, 191

Kruse v. Johnson (1 898) 340, 395, 486, 581
Kuchenmeister v. Home Office (1958) 423
Kuruma v. R. (1955) 458

L 04.C.) (ATI //i/tf>2 r), Jte (1971) 389, 600

Ladies' Directory case (1962) see Shaw v. D.P.P. (1962)
Lakanmi and Ola v. Att.-Gen. ( ) (1970) Nigeria 68
Lake District Special Planning Board v. Secretary of State for the Environment
(1975) 543
Laker Airways Ltd v. Secretary of State for Trade (1976) 576
Lamp lugh, Re (1968) 582
Lansbury v. ifr'/ev (1914) 448
Lavender (H.) & Son Ltd v. Minister of Housing and Local Government (1970)
576
Leach v. Money (1765) 444
£eawa/zv.i?.(1920) 196
v. Bnde and Torrington Junction Rly (1 871) 70, 83
Lee v. Department of Education and Science (1967) 552, 593, 607
Lee v. Enfield L.B.C. (1967) 593
Ztfver Finance Ltd v. Westminster (City) L.B. C. (1970) 388
Lewis, ex p. (1881) 486, 487
Ltfwfrv. Carr/e (1938) 372,472
Lewisham Borough v. Roberts ( 1 949) 181
Liverpool Corporation v. Maiden (Arthur) Ltd( 1938) 274
Liversidge v. Anderson (1942) 46, 339, 505, 580
Liyanage v. R. (1967) 38, 299, 354, 442
Llandudno U.D.C.v. Woods ( 1899) 4S6
Local Government Board v. Arlidge (1915) 184, 531, 543, 566, 571, 572
Bishop of Natal (1 8 64) 123, 643
,

Luby v. Newcastle-under-Lyme Corporation (1964) 581

jLwcas v. jLmcos (1943) 191
Luke oj Pavenham v. Minister of Housing and Local Government (1968)
545
Lynch v. Fitzgerald (1938) Ireland 198,497, 501

M(an Infant), Re (1961) 118

M, Re (1973) 566
McArdlev. Wallace (No. 2) (1964) 459
Macbeath v. Haldimand (1786) 600
MacCormick v. Advocate (1953) Scotland 72. 99
McEldowney v. Forde (1971) 327, 338, 340, 554, 631
McKendrick v. Sinclair (1972) Scotland 117
McLeod v. £/ Aubyn (1 899) 362
MacManaway, Re (1951) 243, 246
Me Whirter v. Att.-Gen. (1972) Europe 1 15

674 Table of Cases

 e 1

Madras Electric Supply Corporation Ltd v. Boarland ( 1955) 119

Madzimbamuto v. Lardner-Burke (1968) Rhodesia 68 __

Madzimbamuto v. Lardner-Burke (1969) 45, 71 74, 142, 642, 655

,

Malloch v. Aberdeen Corporation (1971 ) 568, 570, 594

Manchester Corporation v. Connolly (1970) 582
Manchester Corporation v. Manchester Palace of Varieties Ltd (1955) 502
Mansergh Re (1 861 ) 200
,

Manton v. Brighton B.C. (1951) 386

Mapp v. Ohio (1961) U.S.A. 458
M'Ara v. Edinburgh Magistrates (1913) Scotland 486, 487, 550
Maradana Mosque Trustees v. Mahmud (1967) 554, 568
Marais ex p. (1902) 503
,

Marks v. Commonwealth o] A ustralia ( 1 964) A uslral ia 1 97

Marriage v. Norfolk Rivers Catchment Board ( 1950) 396
Marsh ( Wholesale) Ltd v. Customs and Excise Commissioners (1970) 340, 607
Master Ladies Tailors Organisation v. Minister o] Labour and National Service
(1950) 328
Mawr/ce v. JL.C.C. (1964) 584
Maynard v. Osmond (1976) 539, 572
Maxwell v. Department of Trade and Industry (1974) 570, 574, 594, 595
Meekins v. Henson (1964) 307
Merchandise Transport Co, v. British Transport Commission (1962) 533
Merricks v. Heathcoat-Amory (1955) 606
Merricksw. Nott-Bower (1965) 610
Mersey Docks and Harbour Board Trustees v. Cameron (1 864) 1 20
Mersey Docks and Harbour Board Trustees v. Gibbs ( 1 866) 121, 394
Metropolitan Properties Co. ( F.G C.) Ltd v. Lannon (1 969) 563
.

Meunier Re (1894) 429

y

Mighell v. Sultan ofJohor ( 1 894) 1 28

Miller ( T.A .) Ltd v. Minister of Housing and Local Government (1968) 572
Mills v. L.C.C. (1925) 576
Minister of Health v. R., ex p. Yajfe (1931) 341
Ministry of Agriculture v. Jenkins (1963) 120
Ministry of Housing and Local Government v. Sharp (1970) 390
Miranda v. Arizona (1966) U.S.A. 451
Mir Hasan v. The State (1969) Pakistan 503
Mitchell (1958) N. Ireland 252
Mixnam Properties Ltd v. Chertsey TJ.D.C. (1965) 582
Mohamed Arif{an Infant ), Re (1968) 118, 573
Morris v. Crown Office ( 1 970) 36
Morris v. Redland Bricks Ltd (1970) 591
Mortensen v. Peters ( 1 906) Scotland 71
Mulvenna v. Admiralty (1926) Scotland 191
Munday v. Metropolitan Police District Receiver (1949) 496
Murray v. Epsom Local Board (1897) 383
Murray's case (1751) 317

Table of Cases 675

 7 8 3

Murray v. Parkes (1942) 646

Mtisgrave v. Pulido (1 879) 131
Musgrove v. Chun Tecong 7b}’(lS91) 123, 405
Mwenya exp. , (1960) 43, 134, 456

Nadan v. R. (1926) 46
Nagy v. Fr<’sto/z(1965) 488
Nairn v. University oj St Andrews (1909) 41
Nakkuda Aliv. Jayaratne (1951) 339, 516, 567, 580, 587
Napier ,
<?-v p. ( 1 852) 1 96
Ndlwana v. llojmeyr (1937) S. Africa 75
AV/c v. Clutter Ede ( 1 946) 1 32
Newcastle Breweries Ltd v. 7?. (1920) 338
Mw Wales v. Bardolph (1934) Australia, 599
£<?/////

New Windsor Corporation v. Taylor ( 1 899) 1 1

New York Times Co. v. United States (1971) U.S.A. 468
New York Times Ltd v. Sullivan (1964) U.S.A. 475
Ningkan's case (1966) Malaysia 52
Ningkan v. Government of Malaysia (1970) 52, 506
Nissan v. A tt.-Gen. ( 1 968) 131
Nissan v. Att.-Gen. (1970) 43, 116, 131, 132, 133, 135,424
Ni.xon v. .4 tt.-Gen. (1931) 191

Nouldcutsches Vieh Case (1971) Europe 79

Norwich Pharmacol Co. v. Customs and Excise Commissioners (1973) 61
Nottingham Area No. 1 Hospital Management Committee v. Oimz (1958) 120, 213
Nyali Ltd v. (1956) 123, 125

O'Connor v. /.vw/c\v (1956) 360

O’ /)<?;• v. Commonwealth of Australia (1964) Australia 197

O'Kelly v. Harvey (1883) Ireland 493,495
Olivier v. Buttigieg (1 967) 442
O' Moran v. D.P.P. (1975) 498
124
Oxford and Cambridge Universities v. Eyre and Spottiswoode Ltd (1964)

579, 582, 590

Padfieldv. Minister of Agriculture (1968) 115, 419, 554, 578,
Palmer v. Crone (1927) 360
JV/p uw//z v. C6> ven try (1967) 312,486
Parker v. Bournemouth Corporation ( 1 902) 581
Commissioner exp. Parker
Parker's case (1953) see R. v. Metropolitan Police ,

(1953)
77/c (1879) 126
Par lenient Beige,
Re (1964) 43, 246, 252
Pailiamentary Election for Bristol South-East,
143, 306, 318, 329
Parliamentary Privilege Act 1770, /te (1958) 41, 43,
Patchett v. Leatliam ( 1 949) 337
Paty's case (1 704) 3 1 6, 3 1

Pear lberg v. J
/
V//*0'(1972) 569

676 Tabic of Cases

Pergamon Press Ltd, Re (197 1) 569,570, 573
jPe?/ v. Greyhound Racing Association Ltd (1969) 572
•Pef/ v. Greyhound Racing Association Ltd (No. 2) (1970) 572
Pfizer Corporation Ltd v. Ministry oj Health (1965) 120, 213
P. (G. E.) (an Infant ), ite ( 1 965) 1 22, 423
Philippine Admiral, The (1976) 128
Piddington v. Bates (1961) 449, 460
Pillai v. Singapore City Council (1968) 570, 594
Poe, Re ( 1833) 196
Point oj Ayr Collieries Ltd v. Lloyd-George (1943) 339
Poll w. Lot d Advocate (1899) Scotland 123
Porter v. Freudenberg (1915) 417
Post Office v. Estuary Radio Ltd (196%) 71,118,130
Powell v. McCormack (1970) U.S.A. 311
Poyser & Mills' Arbitration (1964) 552
Practice Direction Crown Courts) (1971) 347
(

Practice Direction (Crown Courts) (1972) 356

Practice Note (Judges' Rules) ( 1964) 371 451 .

Practice Statement 966) 77, 353

(1
Prescott v. Birmingham Corporation (1955) 392, 592, 593
Prestatyn U.D.C. v. Prestatyn Raceway Ltd (1970) 592
Prince's case, Ike ( 606) 82
1

Princes Investment Co. v. Ft i/nfey & Camberley U.D.C. (1962) 388

Prohibitions del Roy ( 1 607) 1 1

Prometheus, The (1949) 600

Punton v. Ministry of Pensions and National Insurance (No. 2) (1964) 594
Pvlh ing ton's case (1455) 84
Pyx Gt anite Co. v. Ministry oj Housing and Local Go vet nment (1958) 580
Pyx Granite Co. v. Ministry oj Housing and Local Government (1960) 596

QuiltotexLtdv. Minister ofHousing and Local Government (1966) 557

Race Relations Board v. Charter (l 973) 433

Race Relations Board v. Docker's Labour Club and Institute Ltd (1976) 434
Ramsay's case (1940) 310
Ramshay, ex p. (1852) 364
Ranaweera v. Ramachadran (1970) 372, 605
Randall v. Tarrant (1955) 487
Ransom & Luck Ltd v. Sw bi/on B.C. (1949) 396
Ratnagopalv. At t. -Gen. (1970) 576
Reade v. Smith (1959) N.Z. 340
Redbridge L.B.C. v. Jaques (1970) 395, 488
Rederiaktiebolaget Amphitrite v R. (1921) 190, 577, 600, 601
Rediffusion (Hong Kong) Ltd v. At t. -Gen. of Hong Kong (1970) 85
R. v. Adamson (1875) 579
R.v.Aldred(1909) 470

Table of Cases 677

 , ,, ,

F. 115,368
v. Alien (1862)
F. 503
v. Allen (1921) Ireland
R. v. Altiincham JJ., ex p. Pennington (1975) 563
R. v. Anderson ( 1 972) 479, 480, 48 1 , 483
F. v. Army Council ex p. Ravenscroft (1917) 200
,

R. v. Arundel ( Countess ) (1617) 86

R. v. Assessment Committee of St Mary Abbots (1891) 572
R v. Aston University Senate ex p. Roffey (1969) 568, 588
.

F. Aubi ey-Fletcher exp. Thompson (1969) 448

v. ,

F. Barker (1962) 481

v.

F. v. Barnet and Camden Rent Tribunal ex p. .Frey Investments Ltd (1972) 578,
580, 582
F. v. Barnsley Licensing JJ (1960) 562,563
F. v. Barnsley M.B.C , ex p. Hook (1976) 563, 564
.

F. v. Barnsley Supplementary Benefits Commission (1976) 589

F. v. Bhagwan (1972) 484
F. v. Birmingham City Justice (1970) 573. 587
F. v. Blackpool JJ ex p Beaverbrook Newspapers Ltd (1972) 584
F. v. Blake (1962) 192
F. v. Board of Control ex/7. Fz/tfy (1956) 455
,

F. v. Bo t trill, ex p. Kuechenmeister (1947) 129, 132, 504

F. v. Brittain (1972) 491
F v. Brixton Prison Governor, exp. Ahsan (1969) 453, 454
F. v. Brixton Prison Governor exp. Armah (1968) 428, 430, 454
,

F. Brixton Prison Governor ex p. Enahoro (1963) 430

v.
F. v. Brixton Prison Governor ex p. Gardner (1968) 430
,

F. v. Brixton Prison Governor exp. Keane (1972) 428

,

F. v. Brixton Prison Governor ex p. Kolczynski (1 955) 428, 429

,

F. v. Brixton Prison Governor , ex p. Kotronis (1969) 428

F. v. Brixton Prison Governor , exp. Fz/s/z (1969) 430
F. v. Brixton Prison Governor , ex p. Schtraks (1964) 428, 429
F. v. Brixton Prison Governor exp. Soblen (1963) 418-19, 427, 609
,

F. v. Brown (1841) 446,497

F. v. Fwms'(1886) 470
F. v. Caird (1970) 492
F. v. Colder & Boyars Ltd ( 1969) 480, 481
F. v. Camborne JJ. ex p. Pearce (1955) 563
F. v. Campbell (1959) 452
F. v. Casement (1917) 469
F. v. Count (1947) 470
F. v. Chancellor of the University of Cambridge (1 723) 565
F. v. Chief Immigration Officer Bradford Airport , ex p. Ashiq Hussain (1970)
,

409
F. v. ChiefImmigration Officer , Lympne Airport ex p. Amrik Singh (1969)
,
409,
410, 573
F. v. Clark (No. 2) (1964) 491

678 Table of Cases

 , , 1

R. v. Clayton and Halsey (1963) 481

R.v. Collier (1965) 451
R. v. Comptroller General ofPatents £jy p. Bayer Products Ltd v i 941 ) jjy
7?. v. Ozj U’<? (Earl), ex p. Sekgome (1910) 134

R. v. Criminal Inini ics Compensation Board c.v p. Lain (1967) 587 ,

7?. v. Customs and Excise Commissioners <?.y/;. Cook (1970) 330, 591, 622 ,

7?. v. Derby JJ, ex p. Kooner (1971) 366, 590

7?. v. Drybones ( 1 970) Canada 88, 441

7?. v. Editor of the New Statesman ( 928) 362 1

7?. v. Electricity Commissioners (1924) 341, 586, 587, 588

R. v. Fennell (1971) 446

R. v. Gaming Boardfor Great Britain , ?.y /?. Benaim and Khaida (1 970) 566, 568,
571,613
7?. v. G.L.C., p. Blackburn (1976) 575, 584, 588
7?. v. Graham-Campbell ex p. Herbert (1935) 313
',

R v. Gray (1900) 362

7?. v. Holliday <?„y /;. Zy/<% ( 91 7) 339, 505
, 1

7?. v. Hampden (1637) 69

7?. v. Harris-Rivett (1956) 202
R. v. Hendon R.D.C
<>;y /?. Charley (1933) 383, 564
. ,

7?. v. Hereford Corporation <?.y /?. Narrower (1970) 584, 591

,

7?. v. Her rod, ex p. Leeds City Council (1976) 588

R. v. Hick lin (1868) 479

R. v. Hillingdon L.B.C., ex p. Rovco Homes Ltd (\974) 551, 580, 588, 596
R. v. Uolah (1973) 446
Tv. v. Home Secrctaiy , *\y />. Akhtar (1975) 413

7?. v. Home Secretary, ex p. Bhurosah (1968) 409

7v\ v. Home Secrctaiy liar nail Singh (1969) 409

,

7v\ v Home Sea etary, ex p. Mi H' /in ter ( 1969) 237

R. v. 77t>/?/<? Secretary, ex p. Mughal (1974) 573

7?. v.Home Secretary, ex p. Phansopkar (1976) 413, 590
R. v. Home Secretary ^.y Soblen 963) 419
, /?. ( 1

7?. v. Housing Appeal Tribunal ( 920) 337, 340, 57 1

7?. v. Immigration Appeal Tribunal cvy p. Joyles (1 972) 237

7?. v. Income Tax Special Purposes Commissioners (1888) 554
7?. v. Inwood (\ 973) 445
7?. v. Jordan (1967) 71
7?. v.7fr7///<7m(1974) 484,485,491
R. v. Kent JJ, ex p. Lye (1967) 118
R. v.
j Kent Police Ant hoi tty <\v />. Godden (1971) 564 570, 587
, ,

R. v. Kirby, ex p. Boilermakers'* Society ( 956) Australia 38 1

7?. v. Kulynycz (1971) 446

R. v. Leman Street Police Station Inspector , <?„y p. VenicoJJ\\920) 418, 454,
566, 577, 582, 587
R. v. Lemsatef (1976) 444
R. v. Lewes JJ, exp. Home Secretary (1973) 1 14, 584, 612

Table of Cases 679

ft. v. Liverpool Corporation exp. Liverpool Taxi Fleet Operators * Association
,

(1972) 3S9, 573, 574, 584, 589

ft. v. Liyanage (1963) Ceylon 354
ft, . v. Llcwellvn-Jones ( 968) 397 1

ft. v.Londonderry JJ ( 1 89 1 ) Ireland 495

R. v. Lynch ( 1 903) 423
ft. v. McFadden (1975) 354

ft v. 7\ fanchester O verseers ( 1 S54) 1 20

.

ft. v. Manley (1933) 371

R. v. MaqsooclAli (1966) 457
jR. v. Martin Seeker & Warburg Ltd (1954) 481
i?. v. Metropolitan Police Commissioner , ex p. Blackburn (1968) 370, 371, 372, 373,
375, 449, 591
R. Metropolitan Police Commissioner , ex p. Blackburn (No. 2) (1968) 315, 362
v.

2?. v.Metropolitan Police Commissioner ex p. Blackburn (No. 3) (1973) 371, 481,

,

482, 591
R. v. Metropolitan Police Commissioner ex p: Parker (1953) 516, 567
,

R. v. Minister of Housing and Local Government, exp. Chichester R.D.C, (1960)

554
J?. v. Mountford ( 1 972) 49
R. Ndhlovu (1968) Rhodesia 67, 74. 142
v.

jR. v. Northumberland Compensation Appeal Tribunal ex* p. 57/aii’ (1951) 556 ,

i?. v. O.C. De/wr Battalion R.A.S.C. Colchester, exp. Elliott (1949)

,
200
2?. v. O'Connor ( 1 966) Canada 451

R. v. O vcnail ( 1 969) 45
R. v. Paddington & St Marylcbone Rent Tribunal, exp. Bell London & Provincial
Pro per tie s Ltd ( 949) 578,589 1

R. v. Pentonvilfe Prison Governor, exp. Azam 420

R. v. Pen r on v die Prison Governor, exp. Fernandez (1971) 430
R. v. Pentonvtlle Prison Governor , ex p. Teja (197 1) 430
R. v. ( 832) 497, 499
Pinney 1

R. Pontypool Licensing Committee (1970) 552

v.

R. v. Port of London Authority, exp. Kynoch (1919)

576

R. v. Post Office ex p. Byrne (1975) 568

,

ft. v. Proper ( 972) 45 1

ft. v./VeM/e(l858) 450

531, 589
R. v. Preston Supplemental y Benefits Tribunal ex/?. Moore (1975) ,

Selvarajan 569, 572, 573, 574

2?. v. ft<r/ce Relations Board exp. (1975)

ft. v. Richards ex ,
Fitzpatrick and Browne (1955) Australia 317
p.

ft. v. Robinson (1971) 491

ft. v. Rule (1931) 307
ft. v. Savundranayagan (1968) 361
ft. v. Secretary of State for the Environment v
ex p. Ostler (1976) 553, 558
ft. v. Secretary of State for Home Affairs, ex p.
Budd (1942) 339, 505
v. Secretary of State for War exp. Martyn (1949) 200
ft. ,

ft. v. 5/;eer Me taleraft Ltd (1954) 332,338

680 Table of Cases

F. v. Sicllev (1 663) sub nom. S vdlye's case (1663) 478
R.v. Skinner {19618) 181,341
7?. v. Smith ( 900) S. Africa 202
1

R. v. Socialist Worker Punters &. Publishers Ltd e.r , /?. Att.-Gen. (1975) 361
7?. v. Southampton //., r* p. Green (1976) 556

v.*S/^/?//^(1972) 480,483
7?. v. Staniforth (1976) 480

7?. v. Stratton (1779) 68

7?. v. Sussex JJ, ex p. McCarthy (1924) 563

R. v. Thames Magistrates , <?a* /?. Pole mis (1974) 571

7?. v. Thistlewood 1 820) 462
7?. v. Tronoh Mines Ltd ( 952) 25 1

R. v. Vine Street Police Station Superintendent , ex p. Liebmann (1916) 132

R.v. Wallace-Johnson (1940) 470
R. v. Waterfield and Lynn ( 1 964) 449, 460
R. v. Wormwood Scrubs Prison Governor , p. Boydell (1948) 200
R. {Garde) v. £/nc/<r/tf//<7(1921) Ireland 503
R. {O'Brien) v. Military Governor , N.D.U. Internment Camp (1924) Ireland 89
Covert (1957) U.S.A. 203
7?<?/V7 v.

Reilly v. R. (1934) 190

Rcpton School Governors v. Repton R.D.C.i 1918) 581
Reynolds v. 5/7#/.v< l%4) U.S.A. 231
Rhyl U.D.C. v. Rhyl Amusements Ltd{ 1959) 389, 395
v. Connolly (1966) 450

Ridge v. Baldwin (1964) 1S9, 363, 374, 567, 568, 570, 588, 594
Ringer /;. ( 1 909) 34
,

Riot dan v. O V/r Office ( 1 959) 90 1

Rivlin v. Bilaink in ( 953 ) 305 1

Road Transport Industry Training Board v. Wyatt {Haulage) Ltd (1972) 595
Roberts v. Hopwood{ 1925) 393, 580, 581
Roberts {Charles) v. British Railways Board ( 1 965) 2 1
Robertson v. Minister of Pensions (1949) 190, 389, 577, 600
Robinson v. Minister of Town and Country Planning (1947) 46, 582
Robinson v. Sew/A Australia (No. 2) (1931) 609
Robson v. Hallett (1967) 450
Roclwellv. Thomas {\9U) 190
Rondel v. Wors ley {1969) 360
7?<9///A v. Reading Corporation (1971) 558
7?0jw/ Aquarium etc. Society v. Parkinson ( 1 892) 516

Royster v. Gzvey ( 1 947) 602

Rustomjee v. 7?. (1876) 127
Ryder v. ifa/ey (1906) Australia 47
Ry lands v. Fletcher (1866) 605

SA CE v. Italian Ministry of Finance (1971) Europe 78

Sabally andN'Jie v. Att.-Gen. (1965) 68, 117, 328

Table of W
 . . ,

Sagnata Investments Ltd v. Norwich Corporation (1971) 398, 575, 576

Salomon v. Secretary of State jor India (1906) 1 32, 136
Salomon v. Customs and Excise Commissioners (1967) 130
Sammut v. Strickland (1938) 1 24, 644
Schmidt v. Home Secretary (1969) 123, 418, 422, 568, 576
Schorsch Meier G.m.b.H. v. Hennin (1975) 78
Schtraksy exp (1964) 455
Se&e/ Products Ltd v. Customs and Excise Commissioners (1949) 594
Secretary ofState for Education and Science v. Tameside M.B. C. 55 4, 579
Secretary ofState for Employment v. y45L£7r (No. 2) (1972) 340, 554
Secretary ofState for Home Department v. Lakdawalla (1 972) 115, 426
Secretary oj State for India v. Kamachee Boye Sahaba (1859) 131, 136
Shaw v. 7XP.P. (1962) 479, 484
Sheldon v. Bromfield JJ (1964) 448
Shenton v. 67ta//z (1 895) 1 89
SheriffofMiddlesex's case (1840) 317, 354, 454
Simpson v. Att.-Gen (1955) N.Z. 552
Sirros v. Moore (1975) 360
67a case (1972) Europe 661
Smethwick case (1932) see Att.-Gen. v. Smethwick Corporation (1932)
Sta/ta v. East Elloe R.D.C. (1956) 553, 558
Sobhuza 17 v. Miller (1926) 125,134
Sob ten's case (1963) see R. v. Brixton Prison Governor e* Soblen (1963)
,

Solihull M.B.C. v. Maxfern Ltd (1977) 395, 592

Somerset v. Stewart (1772) 454
Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd (1962) 388
<?/ Scotland Electricity Board v. British Oxygen Co. (1959) 213

v. W/Z/aiw (1971) 596

Special Reference No. 1 of 1955 (1955) Pakistan 68

Special Reference No. 1 of 1 964 (1 965) India 318
Stanbury v. Exeter Corporation (1905) 397 •

State, The v. Dora? (1958) Pakistan 67, 502

States ofJersey , Pe (1853) 143
Stepney B.C. v. Joffe (1949) 584
Stockdale v. Hansard (1839) 86, 305, 317
Stourton v. Stour ton (1963) 310
Stringer v. Minister of Housing and Local Government 576
Sunday Telegraph Case (1971) 472
Sutton v. Att.-Gen. (1923) 190
Swallow & Pearson v. Middlesex C. C. (1953) 395
Sydlye's Case (1663) 478
Sydney Municipal Council v. Campbell (1925) 577

T(AJJ.\ Re (an Infant) (1970) 582

7bm///z v. Hannaford (1950) 120, 121, 213, 603
2^/flr v* (1973) 497

682 Table of Cases

 .

Taylor v. Munrow (1960) 393

Tehrani v. Rostron (1972) 553
Terrell v. Secretary of State for the Colonies (1953) 1 89
Territorial Forces Association v. Nichols ( 1 949) 1 20
Thai-Europe Tapioca Service Ltd v. Government of Pakistan (1975) 128
Thomas v. Sawkins (1935) 450, 459, 489
Thomas v. Sorrell (1 674) 69
Thorne R.D.C v. Bunting (1972) 594
Tilonko v. Att.-Gen. of Natal (1907) 503
Treacyv. D.P.P. (\971) 430
Trial oj the Seven Bishops (1688) 70
Triefus v. Pay/ Office (1957) 604
Turner v. Secretary of State for the Environment (1973) 546, 584
Tynan v. Balmer (1967) 449

Uganda v. Prison Commissioner, <?* /?. Matovu (1966) Uganda 67

Underhill v. Ministry ofFood (1950) 607
Utah Construction and Engineering Co. v. Pataky (1966) 327

Fa/e Estates {Acton) Ltd v. Secretary of State for the Environment (1 970) 545
Vaudin v. Hamon (1974) 636
Vauxhall Estates Ltd v. Li verpool Corporation (1932) 73
Venicoff's case (1920) see P. v. Leman Street Police Station Inspector , /?.

Venicoff{mO)
Vidyodaya University Council v. *S7/va (1965) 570, 587
F//ze v. National Dock Labour Board (1957) 189, 594
Viscountess Rhondda's case (1922) 288

PF.X.PF.,Pe(1972) 566
Walker v. Baird (1 892) 1 35
Walters v. Smith {W. H.) & SonLtd{\9\A) 445
FFard v. Bradford Corporation (1971) 564
FFoty/ v. Holman (1964) 478
Warwickshire C.C. v. British Railways Board (1969) 592
Wason, exp. (1869) 305
PFaso/iv. Walter (1868) 307
PFfl// v. Kesteven C.C. (1955) 48, 596

Webb v. Minister of Housing and Local Government (1 965) 554

Wednesbury Corporation v. Ministry of Housing and Local Government (1965) 610
Wednesbury Corporation v. Ministry of Housing and Local Government (No. 2)
(1966) 541
Wednesbury Corporation case (1948) see Associated Provincial Picture Houses Ltd
v. Wednesbury Corporation (1948)

Wellesley v. Earl ofBeaufort (1831) 310

Wells v. Minister of Housing and Local Government (1967) 389
Wensleydale Peerage case (1856) 289, 299

Table of Cases 683

Westminster Bank Ltd v. Beverley B.C. (1971) 41, 338, 578
Westminster Corporation v. L. & N. W. Rly Co. (1905) 577
West Rand Central Cold Mining Co. v, R. (1905) 136
Wheatley v. Lodge (1971) 445
Whitehall v. Whitehall (1957) Scotland 609
Wilkes v. Wood (17 63 and 1769) 444,459
Williams v. Tfo ww/A (1905) 109
Willion v. Berkley (1561) 119
Wilson v. £v<7/z5 (1962) 385
Wilson v. Skeoclc (1949) 448
Wiltshire v. Barrett (1 966) 445

Wue v. Dunning ( 1 902) 477, 492, 495

Wiseman v. Borneman (1971) 569
Woody. Ealing L.B.C. (1961) 596
Wood v. Leeds Area Health Authority (1974) 120, 213
Worthington v. Robinson (1897) 196
Wright v. Fitzgerald (1798) 503

Yabbicom v. i?. (1899) 395

Zacharia v. Republic of Cyprus (1963) 430

Zamora , 77/e' (1916) 114

684 Table of Cases

Table of Statutes

Act of Settlement 1701 39,71,108, 144,244, 358,

362, 363
s. 3 417
Act of Union with Ireland 1800 25,71,72
Act of Union with Scotland 1707 25,39,71,72,137, 289, 628
Administration of Justice Act 1960 39
s. 11-13 362
14(2) 455
Administration of Justice Act 1969
s. 12-16 352
Administration of Justice Act 1970 352
Administration of Justice Act 1973 346, 358, 364
Adoption Act 1958, s. 19 407
Adoption Act 1976 407
s. 40(1)

Aii ports Authority Act 1965, 1975 209

Aliens Employment Act 1955, s. 1 417
Aliens Restriction (Amendment) Act
1919 405, 470
American Colonies Act 1766 65
Appellate Jurisdiction Act 1876 299
s. 6 363
Armed Forces Act 1966
s. 25,26,35 201
Armed Forces Act 1976
s. 1 196
Army Reserve Act 1950, s. 10(1) 506
Atomic Energy Authority Act 1954 193
s. 3 211
6 213
sched. 1 193

Backing of Warrants (Republic of

Ireland) Act 1965 427
s. 2(2) 428

Table of Statutes 685

Bali Act 1976 447
Betting* Gaming and Lotteries Act
1963 518
of Rights 1689
Bill 25,39, 41, 66, 67,
195,223
art.9 84,304, 306
Bill of Rights 1960 (Can.) 88,440,441
British Leyland Act 1975 208
British Nationality Act 1948 403,406
S.1 407
1(3) 135,233
3(1) 135
3(2) 233,408,416
3(3) 408
5,6,8, 10 407
13,16 408
'

20(7) 547
26 407
32(1) 233,408,415
33(2) 408,634
sched. 2 407
3 408
British Nationality Act 1958 406
British Nationality Act 1965 406,408
British Nationality and Status of Aliens
Act 1914 405
British Nationality (Nos. 1 and 2) Acts
1964 406
British North America Act 1867 648
s. 91 16
British North America Act 1 949 646
British North America (No. 2) Act 1949 648
r

British Settlements Acts 1887, 1945 643

Canada Citizenship Act 1946 (Can.) 406

Ceylon Independence Act 1947 47, 75
Chequers Estate Act 1917 147
Chevening Estate Act 1959 147
Children and Young Persons Act 1969 346
s.29 447
Children and Young Persons (Harmful
;
Publications) Act 1955 , 482
Cinematograph Act 1952 467
Civil Authorities (Special Powers) Act
(N.I.) 1922 338, 632, 634
Civil Aviation Act 1971 207,209, 521

686 Table of Statutes

Civil Aviation Act 1971 - continued
s. 4 211
4(3) 576
40 211
40(1) 207
Civil List Acts 1 952, 1 972, 1 975 112
Coal Industry Act 1971 207
Coal Industry Nationalisation Act 1946
s. 3(1) 211
Colonial Laws Validity Act 1865 644, 645
s.2 46, 647
3 647
5 88,644
Colonial Stock Act 1877 599
Commissioner for Complaints Act
(N.I.) 1969 632
Commonwealth Immigrants Act 1962 409, 411,
s. 1(2), (3) 409
2 410
12 406, 407
18 409
sched. 3 409
Commonwealth Immigrants Act 1968
S.1 411
2-4 410
Commonwealth of Australia
Constitution Act 1900 19, 649
s. 9 19
Companies Act 1967, s. 19 147, 248
Consolidation of Enactments
(Procedure) Act 1949 85, 270
Constables’ Protection Act 1750 444
Consular Relations Act 1968 128
Cook Islands Constitution Act 1964-65
(N.Z.) 649
Counter-Inflation (Temporary
Provisions) Act 1972 207,400
Counter-Inflation Act 1973 207
Courts Act 1971 293, 347
s. 16(4) 364
17(4) 364
21(3), (6) 364
39 349
sched. 11 358
Courts-Martial (Appeals) Act 1968 201
Criminal Appeal Act 1968 349
Criminal Appeal Act 1968 - continued
s. 7,8 350
17 350
23 350
Criminal Justice Act 1925, s. 42 478
Criminal Justice Act 1967
s. 2
3 346, 464
6 346
13 349
18,22 447
25 483
£9-62 123, 350
63,64 350
schcd. 2 350
Criminal Justice Act 1948 298
Criminal Justice Act 1972
s. 33 477
35 350
36 350, 359
43 447
Criminal Law Act 1967 444, 470, 559
s. 1 242
2 444
,
2(2)-(5) 445
2(6) 450, 458
3 445,497
4 449
5(2) 371,449,476
9 112
10 242
10(2) 242,497
sched. 3 242, 497
Crown and Parliament Act 1689 66
Crown Proceedings Act 1947 39,114,117,118
s. 2 603
2(5) 605
2(6) 372, 603
3(7) 236
9 604, 605
10 199, 604
110) 117
11(2) 604
13 598
17 606
21 236, 592

688 Table of Statutes

Crown Proceedings Act 1 947 - continued
2H1), (2) 606
28 607
38(2) 603
39(1) 598
40(1) 117, 599
sched. 1 363, 598
2 598
Customs and Excise Act 1952
s.275-80 483
294-8 458
sched. 7 483
Customs Consolidation Act 1876, s. 42 483

Defamation Act 1952 39

s. 1 474
4,7,16 475
sched. 475
Defence of the Realm Acts 1914, 1915 322, 505
Development Land Tax Act 1976 208
Diplomatic and other Privileges Act
1971 128
Diplomatic Privileges Act 1964 128
Dock Work Regulation Act 1976 208
Domestic and Appellate Proceedings
(Restriction of Publicity) Act 1968 464

Ecclesiastical Courts Jurisdiction Act

1860, s. 2 474
Education Act 1944, s. 76 48
Electoral Law Acts (N.I.) 1968, 1969 632
Electoral Registers Act 1953 232
Emergency Powers Act 1 920 227, 506
Emergency Powers Act 1964 227, 506
s. 2 506
Emergency Powers (Defence) Act 1939 322, 326, 328, 505
s. 1 (2)-(4) 505
2 505
9 117, 505
Emergency Powers (Defence) Act 1 940 322, 328, 505
Emergency Powers (Defence) (No. 2)
Act 1940 505
Employment Protection Act 1975
ss. 71-80 191,601
121(3) 197
121(4) 191
sched. 16 570, 601

Table of Statutes 689

Equal Pay Act 1970 436,437
European Communities Act 1972 13,39, 78-81,127, 341,661
s. 1 42,126, 275, 661
1(3) 126
2(1) 43, 78,126,272, 274. 328
2(2) 90, 328, 330
2(3) 274
2(4) 43,78,80,130, 328, 661
3 42, 126
3(1) 79, 130
5 -
274
6 177, 206, 274
sched. 1 126, 274
2 330, 334
3 218
Exchequer and Audit Departments Act
1957
s. 1(3) 330
Expiring Laws Continuance Acts 405
Extradition Act 1 870 341,427
s. 3 428
11 428

Fair Trading Act 1973 209

s. 104 208
Family Law Reform Act 1969 242
Finance Act 1961 s. 9 328
Finance Act 1969 591
Fisheries (Oyster, Crab and Lobster)
Act 1877, s. 5 527
Forcible Entry Act 1381 491
Forcible Entry Act 1429 491
Foreign Compensation Act 1950 557
s. 4(4) 127, 293,558
Foreign Compensation Act 1969 127 293
s. 3 127, 558
Foreign Jurisdiction Act 1890 124, 643
s.4 129
Foreign Jurisdiction Act 1913 643
Forfeiture Act 1870, s. 2 242
Fugitive Offenders Act 1881 428,430
s. 10 430
Fugitive Offenders Act 1967 427,430,431
s.4 431
*

8 431
9(3) 431

690 Table of Statutes

 Gaming Act 1968 518
Gas Act 1972 210
s. 8-13 217
sched. 3 217
General Rate Act 1967 P0, 390
Genocide Act 1969, s. 2 429
Government of Ireland Act 1920 28. 30, 630
s. 5 28
75 630
Greater London Council (General
Powers) Act 1971, s. 4 395

Habeas Corpus Act 1679 39, 360, 439,452

s. 10 452
Habeas Corpus Act 1862 456
Highways Act 1959 491
s. 121 488
121(2) 449
Highways (Miscellaneous Provisions)
Act 1961 397
Hijacking Act 1971 73
His Majesty’s Declaration of
Abdication Act 1936 71,99,108
House of Commons (Clergy
Disqualification) Act 1801
House of Commons Disqualification
Act 1957 244, 245
House of Commons Disqualification
Act 1975 39, 245
s. 1(1) 198, 358, 371
1(2) 358
2(1) 173, 244
4 245
6 246
6(2), (3) 330
7 143, 246
sched. 1 245, 358
sched. 2 243, 244
House of Commons (Redistribution of
Seats) Act 1944 39,235, 341
House of Commons (Redistribution of
Seats) Act 1949 39, 235
s. 3(7) 341
House of Commons (Redistribution of
Act 1958
Seats) 39. 235, 341
Housing Finance Act 1972 394, 400, 582

Table of Statutes 691

Housing Finance (Special Provisions)
Act 1975 394, 400
Housing Rents and Subsidies Act
1975 534

Immigration Act 1971 403,411,412, 520

s.l(l), (2) 413
1(3) 415
1(5) 414
2(l)-(4) 413
2(5) 406
2(6) 412
3(2) 334
3(5), (6) 420
3(8), (9) 413
4 458
5(6) 420
7 413,420
8(5) 413
9 415
13(5) 181,421
13-17 421
’

14(3) 181
15(3) 421
15(4) 181,421
15-17 421
19, 20 421
22(4) 421
23 421
29 420
33 413
33(5) 405
sched. 1
406, 407,413,458
3 420
4 415
Immigration Appeals Act 1969 411,420, 520
s. 16 418
20 410
Incitement to Disaffection Act 1934 470
Incitement to Mutiny Act 1797 470
Independent Broadcasting Authority
Act 1973 210
s. 4 (\)(a)
214
10 218
Industrial Relations Act 1971 159,191,354,570,601
Industry Act 1971 207

692 Table of Statutes

Industry Act 3972 206, 207
Industry Act 1975 206, 208
International Organizations Act 1968 128
Interpretation Act 1889
s. 9 84'

110) 118
18(1) 634
18(2) 634
30 109
38(2) 318
Ireland Act 1949 646
s. 1(2) 48, 87
2 233
2(1) 415
3(1) 416
Irish Church Act 1869 71
Irish Free State (Agreement) Act 1922 630
Irish Free State Constitution Act
1922 630
Iron and Steel Act 1949 296
Iron and Steel Act 1967 210
Iron and Steel Act 1972 207
Iron and Steel Act 1975 210, 296
s. 2(4) 213
4 211
Island of Rockall Act 1972 628
Isle of Man Act 1958 638
Isle of Man Purchase Act 1 765 638

Jamaica Independence Act 1962, s. 1(1) 113

Committee Act 1833
Judicial 46
s. 4 143, 359
Judicial Committee Act 1844 46
Judicial Pensions Act 1959
s. 2 364
Judicial Proceedings (Regulation of
Reports) Act 1926, s. 1 464
Juries Acts 1949, 1954, 1974 348
Justices of the Peace Act 1361 448
Justices of the Peace Act 1949 346
Justices of the Peace Act 1968
s.l 347
1(7) 447
2 347, 364
Justices’ Protection Act 1848, s. 1 360

Table of Statutes 693

Kenya Independence Act 1963
s. 2,3 410

Land Commission Act 1967 325

Land Commission (Dissolution) Act
1971 207, 325
Law Commissions Act 1965 365
Law of Libel Amendment Act 1888
s. 8 474
Law Officers Act 1944 367
Laying of Documents before Parliament
(Interpretation) Act 1948 333
Legal Aid Act 1974 366
Licensing Act 1953, s. 48(5) 562
Licensing Act 1964, s. 193(6) 562
Licensing (Abolition of State
Management) Act 1971 207
Life Peerages Act 1958 39,288, 289,292, 301
Local Employment Act 1972 206
Local Government Act 1933 395
Local Government Act 1966
s. 11 391
276 395
Local Government Act 1972 344 379-401
,

s. 3(5) 383
5(4) 383
20(7) 627
70 267,381-
79-81 382
94-8 383
100 385
101 381,386,388
102 381,386
107 374
111(1) 393
112 387
114,115,117 388
137 393
147-9 390
154-66 393
173-4 383
196 374
202 205
222 395, 592
228(1) 385 •

239 267

694 Table of Statutes

 Local Government Act 1972 - continued
272 374
273 325
sched. 30 374
Local Government Act 1974
Part I 390
Part II 390
Part III 384
s. 3 391
5 392
Local Government (Financial
Provisions) Act 1963, s. 6 393
Local Government Grants (Social
Need) Act 1969 391
Local Government (Miscellaneous Pro>-
visions Act) 1976 401
Local Government (Scotland) Act 1973 379
London Government Act 1963 393
Lord Chancellor (Tenure of Office and
Discharge of Ecclesiastical Functions)
Act 1974 365, 461

Magistrates’ Courts Act 1952

'
s. 38 447
91 448
Magistrates’ Courts (Appeals from
Binding-Over Orders) 1956 448
Magna Carta 298, 452
Marine etc. Broadcasting (Offences) Act
1967 463, 635
Mauritius Independence Act 1968, s.
1(2) 76
Meeting of Parliament Act 1694 223
Meeting of Parliament Act 1797 226
Mental Health Act 1959, s. 137 242
Metropolitan Police Act 1839
s. 52 487,488,490
54 488
54(9) 487
63 444
Ministerial and other Salaries Act 1975 53, 147, 243,
s. 1 173, 291
2(1) 147, 257
sched. 1 147, 173, 179
Ministers of the Crown Act 1964 244
Ministers of the Crown Act 1975 40, 180, 187

Table of Statutes 695

Ministers of the Crown (Transfer of
Functions) Act 1946 187
Ministry of Social Security Act 1966
s 2,3 177
sched. 1 177
Misuse of Drugs Act 1971, s. 23 458
Murder (Abolition of Death Penalty)
Act 1965 292
s. 1 330

National Assistance Act 1948 177

National Health Service (Scotland)
Act 1972 619
National Health Service Reorganization
Act 1973 213
s, 31 619
34(2), (4), (5) 619
National Loans Act 1968 278
Naval Discipline Act 1957 196
New Towns Act 1946 541
Newspaper Libel and Registration Act
1881, s.4 474
Northern Ireland Act 1962, s. 14 28
Northern Ireland Act 1972 28
Northern Ireland Act 1974 633
s. 1 633
sched. 1 633
Northern Ireland Assembly Act 1973 633
Northern Ireland (Border Poll) Act
1972 633
Northern Ireland Constitution Act 1973 633
s. 1 48, 87
4(4) 633
31 48, 633
32(3) 137
Northern Ireland (Emergency Provi-
sions) Act 1973 634
Northern Ireland (Emergency Provi-
sions) (Amendment) Act 1975 634
Northern Ireland (Temporary
Provisions) Act 1972 28,326,632
s. 2 632
sched. 1 332, 334

Obscene Publications Act 1959 39, 479

s. 2(5) 479

696 Table of Statutes

Obscene Publications Act 1959 - continued
3 483
4 480
Obscene Publications Act 1964 39.479
s. 1(3) 479,481
Offences Against the Person Act 1861
s. 18, 20 559
Official Secrets Act 1911
s. 1 471
1 ( 2) 471
2 368, 464,471, 472, 525
3 471
Official Secrets Act 1920
s.4 457
6 471
Official Secrets Act 1939 471
Offshore Petroleum Development
(Scotland) Act 1975 208
Oil Taxation Act 1975 208

Pakistan Act 1973 406

Parliament Act 1911 39,48 51,62 82, 86, 89, 106, 224, 254,
287,294, 295, .>00
s.l 295
1(3) 86
2 295
2( 1 ) 86,^25
2( 2 ) 86, 341
3 86, 341
4(1) 82
7 225
Parliament Act 1949 39.82,86, 87, 224,295, 296
s. 2(2) 341
Parliamentary and other Pensions Act
1972 53, 257
s. 26 147
Parliamentary and other Pensions and
Salaries Act 1976 53, 257
Parliamentary Commissioner Act
1967 39,282, 617
s. 2(2) 330
4 617
5(1) 617
5(2) 377, 547, 620
8 618
8(4) 147

Table of Statutes 697

 Parliamentary Commissioner Act
1967 - continued
10(5) 307. 618
11(1H3) 618
12(3) 619
13 632
sched. 2 177, 377,617
3 377,619
Parliamentary Oaths Act 1866 312
Parliamentary Papers Act 1 840 305,318
Parliamentary Privilege Act 1770 41,43,143,306,310,318
Peerage Act 1963 39,288,289,290
s. 1 59
Petition of Right 1628 452. 502
Petitions of Right Act 1860 598, 599
Petroleum and Submarine Pipelines
Act 1975 208
Police Act 1964 372, 374, 376
s. 4(1) 375
5(4) 374
6(5) 374
11,12 375
15 122,371
28 375,376
29 374
30 375
33(3) 374
44,47 371
48 372, 603
49, 50 377
51 493
51(3) 371,448,494
53 371,470
Police Act 1969 632
Police Act 1972, s. 1 371
Police Act 1976 343, 377
.s. 1(1) 378
'

1(2) 378
2(1), (3) 378
3(2), (3) 378
4(1)(6 378
4(2) 378
11 378
Poor Law Amendment Act 1834 324
Post Office Act 1953 482
s> 11 463,483

698 Table of Statutes

Post Office Act 1953 - continued
16,17 483
"

26(6) 483
58 403
58(1) 457
66 4(3
Post Office Act 1969 121,210
s. 6(5) 213
9(4) 213
29,30 605
64 483
78 476
80 457
’

130 206
Powers of Criminal Courts Act 1973 346
ss. 22-7 346
Prevention of Crime Act 1953 498
Prevention of Crimes Act 1871, s. 12 493
Prevention of Crimes Act 1885, s. 2 493
Prevention of Fraud (Investments) Act
1958 535
Prevention of Terrorism (Temporary
Provisions) Act 1976 34, 415, 446
Prices and Incomes Acts 1966-68 207
Privy Council (Limitation of Appeals)
Act 1968 (Australia) 142
Protection of Aircraft Act 1973
s. 5
429
Provisional Collection of Taxes Act 1913 275, 330
Provisional Collection of Taxes Act 1968 86, 330
S.1
275
5 275
Public Bodies (Admission to Meetings)
Act 1960 385
Pub’ic Health Act 1936, s. 305 390
Public Meeting Act 1908, s. 1 492
Public Order Act 1936 39,459
s.1
498
2 484
2(6)
498
3 488
4 498
5 477,478,492,495
9 477
Public Order Act 1963 477
Public Records Acts 1958, 1967 468

Table of Statutes 699

 7

Race Relations Act 1968 432-3

s; 1-7
8
9
16(2)
19-23
27
Race Relations Act 1976 433-6, 478
s. 70 436,478
Recess Elections Act 1975 249
Referendum Act 1975 60, 80, 93
Regency Act 1937 86,110
s. 4(2) 86, 111
Regency Act 1953, s. 1 110
Remuneration, Charges and Grants
Act 1975 208
s. 1 328
Representation of the People Act 1832 145,287
Representation of the People Act 1867 226
Representation of the People Act 1949 232
s. 1
232, 233
50 238
63 250
63(1) 251
80(1) 250
82,83 485
97 250
139-52 '
243
sched. 485
Representation of the People Act 1969 232
S.1 232
2 238
4 234
8 250
9 250, 251
9(2)~(4) 251
9(5) 250
10 250
15 382
Representation of the People Act 1974 250
Reserve Forces Act 1966 195, 506
Riot Act 1714 497,499
Riot (Damages) Act 1886 497
Road Traffic Regulation Act 1967, s.
79 120
Rolls-Royce (Purchase) Act 1971 207

700 Table of Statutes

Royal Assent Act 1967 39,81,117
Royal Marriages Act 1772 109
Royal Parks and Gardens Act 1872 486
Royal Titles Act 1953 99

Science and Technology Act 1965 178

ScottishDevelopment Agency Act 1975 208
Seditious Meetings Act 1817 470
s. 23 490
Septennial Act 1715 224
Sex Discrimination Act 1975 436, 437-8
Sex Disqualification (Removal) Act 1919 288
Sexual Offences Act 1967 292, 293
Social Security Act 1975
s. 138(2) 332
139 332
sched. 15 332
South Africa Act 1 909 88
Southern Rhodesia Act 1965 59,74,91,642,655
Statute Law Revision Act 1 $48
s. 3(1) 82
Statute Law Revision Act 1966 270
Statute of Proclamations 1539 324
Statute of Treasons 1351 73.109,462
Statute of Westminster 1931 39,47,62,98, 142
s. 1 46
2 46, 647
3 647
4 47, 62, 74, 75, 552
7-9 648
11 46, 647, 648
Statutory Instruments Act 1946 40, 329
s. 1 139
3(2) 333, 337
4(1) 333
5(1) 333
Statutory Orders (Special Procedure)
Acts 1945, 1965 329
Street Offences Act 1959 482
Succession to the Crown Act 1707 108, 226
Superannuation Act 1965, s. 79 191
Superannuation Act 1972, s. 2(6) 191
Supplies and Services (Defence
Purposes) Act 1951 322
Supplies and Services (Extended
Purposes) Act 1947 322

Table of Statutes 701

Supplies and Services (Transitional
Powers) Act 1945 322
Supreme Court of Judicature Act 1873 299
Supreme Court of Judicature
(Consolidation) Act 1925, s. 12(1) 363

Television Act 1964

s. 3(1) 214
TerritorialWaters Jurisdiction Act 1878 118
Theatres Act 1968 39 479
s. 1(2) 466
2(4) 479
3 480
4 474
5 478
6 477
7 474
14 466
Theft Act 1968
s. 13 457
26 459,460
Tonga Act 1970 126
Town and Country Planning Act 1968,
64
s. 388
Town and Country Planning Act 1971 596
s.4 388
7,8 400, 544
9 544
11-14 401,544
26-8 401
sched. 9 526
Town and Country Planning
(Amendment) Act 1972
s. 1-3 401
3(1). (2) 544
Town Police Clauses Act 1847
s. 21 487
28 488
Trade Descriptions Act 1 968 476
Trade Union and Labour Relations Act
1974
sched. 1 601
*
sched. 1, para. 33 601
Trade Union and Labour Relations
(Amendment) Act 1976 296-7
Transport Act 1947 210
Transport Act 1962 210

7Q2 Table of Statutes

Transport Act 1968 210
s. 6(1) 211
39 211
52(5) 213
59(2) 576
106(1) 213
160-62 213
Transport (Grants) Act 1972 211
Transport Holding Company Act 1971 207
Transport (London) Act 1969 205
Travel Concessions Act 1964 393
Treason Act 1795, s. 1 462
Treason Felony Act 1848 109,469
s. 3 462
Tribunals and Inquiries Act 1958 509, 537, 556
S.ll 127,557
11(1) 553
11(3) 293, 553, 558
Tribunals and Inquiries Act 1971 39, 523, 537
s. 5 538
7-9 538
10 331
11 331,557
12 185,540, 557
12(1) 543
13 556
14 341,407, 557,559
14(3) 293
19(1) 543
Tribunals of Inquiry (Evidence) Act 1921 282, 377,476, 525
Tumultuous Petitioning Act 1661, s. 1 470

Uganda Independence Act 1962 408

s. 2(1) 414
Ulster Defence Regiment Act 1969 632
Universities (Scotland) Acts 1853, 1932 72
Unlawful Oaths Act 1797 470
Unsolicited Goods and Services Act
1971
s.4 457,483

Vagrancy Act 1 824, s. 4 478

Visiting Forces Act 1952 203,417
s. 13 422

War Damage Act 1965 38, 136, 504

Tshlft of Statutes 703

Water Act 1973 400
Welsh Church Act 1914 296
Welsh Courts Act 1 942 628
Welsh Development Agency Act 1975 208
Welsh Language Act 1967 628
s.4 627
West Indies Act 1967 30, 39, 645,650-51
s. 1 2(2) 408
18 341
Wild Creatures and Forest Laws Act
1971 123
Wireless Telegraphy Act 1949 457,463
Workmen’s Compensation Acts 533

704 Table of Statutes

 Index

Abdication Acts of Union

by monarch, 54, 71, 98, 108, 226 Ireland, 25, 71,72,629
by Parliament, 74-81 Scotland, 25, 39, 71-2, 137,628
Absolute privilege Wales, 627
judicial proceedings, 304-5, 360, 487, Ad hoc authorities, 204, 205-6
622 Adjudicators, immigration appeals
Parliamentary Commissioner for and, 421-2, 423
Administration, 307, 384, 617-23 see also Immigration restrictions
Parliamentary proceedings and Administrative(or executive) functions,
papers, 304-5, 307, 316-18, 474-5, 324-5, 329, 514-16, 542, 543, 587-8,
612 617,619
Abuse of discretion, 115, 392-3, 394, Administrative law, 509-613
41 8-19, 422, 485-6, 553-82, decisions in, 514-20
590 definitions, 15, 51 1-14
appeals against, 520-22 reform, 596-7, 614-1
tort liability and, 396-7, 580, 606 see also chapters 9, 15, 1
see also Discretion ; Improper Administrative tribunals, 37, 351 , 475,
Purpose; Parliamentary 518, 519-20, 523-4 , 528-41
Commissioner for Administration appeals, 294, 540-41 , 556, 557-8
Unreasonableness chairmen, 356, 365, 538-9
Accession, 108-9 classification, 533-6
Acts of Parliament delegated legislation and, 324-5
meaning, 40-41 81-90 , legal representation, 533, 538, 539-40,
preamble, 47, 48 572
see also Bills Parliament ; Sovereignty
; members, 539
of Parliament why preferred to courts, 531 533-6
,

Acts of State, 43, 124, 125, 127, 130-36 ,

see also Council on Tribunals;
423-6,604 -
Judicial review of administrative
aliens and, 134, 135, 423-5 actsand omissions
British protected persons and, Advisory bodies, 176, 178, 204, 322,
134-5,426 331-2
British subjects and, 132, 134, 135, Advisory, Conciliation and Arbitration
136,423 Service, 176, 191
foreign, 130, 132 Advisory opinions, 246, 306, 350, 359-
not source of legal rights, 127-8, 130 60
prerogative and, 130-31 Affray, 497

Index 705
 ) , 1

Agency in public law, 33 5-6, 387-8, Defence Council, 196, 197

395,599-600 disposition, 1 14, 123, 132, 196,471,

Agricultural land tribunals, 529, 534, 500-501

535 incitement to disaffection, 470

Aldermen, 382 military law, 195, 196, 198-203

Alderney, 636 navy, 196

Aliens Northern Ireland, 63 1 , 632, 633
appeals, 41 8, 420-21 Standing Civilian Courts, 203
disabilities, 233, 417 usurpation of functions, 484
EEC nationals, 41 1,415-16,417, 434 see also Crown servants Emergency,
;

enemy, internment and expulsion, state of; Martial law; Prerogative;

123,129,132,417,504 Soldiers ; Visiting forces

exclusion, 123, 405, 407-8, 41 8, 577 Arrest

meaning, 408 by warrant, 345
local allegiance, 1 35, 405,424 civil matters, 3 10
naturalization, 405, 407 force in effecting, 445, 458
regulation of, 405, 407-8, 477 without warrant, 370, 444-7, 449, 463,
treason by, 405 n. ,416-17, 424 488
see also Act of State; Deportation; Arts Council, 176
Immigration restrictions Assizes, 347

Allegiance, 109, 121-2, 134-5,405, Associated states, 641 649-5

423-6 Atomic Energy Authority, 193, 211,213
common, 98, 406, 646-7 Attainder, 298-9
protection and, 122, 134-5,405,423- Attorney-General, 85, 123, 213, 345,
6 350, 35 6,567-9, 381 , 392,4 65-6,

see also Aliens ; Commonwealth; 468,473,592-5,632

Dominion Status ; Treason
,
Audi alteram partem rule, 564-74
America see United States see also Natural justice

Anguilla, 650, 651 Audits Comptroller and Auditor

Annexation of territory, 124, 131,136, General ; District Auditor
'
407 Australia
Appeals in administrative law, 127, 398, constitutional law in, 16, 19-22, 38,47,

520-22, 540-41, 543, 583 64,75,102

,to Ministers, 351 , 374, 520, 521 , 535, statesand Commonwealth, 75, 142 /*.,
540 648-9
Arbitration, 351 ,439,440,441 ,465 Statute of Westminster and, 47, 74-5,

Archbishops, 100, 122, 137,288 648/z., 649

Armed forces, 122, 1 32, 133, 195-203 ,
Autochthony, 65
•
224,497,499-504
annual authorization, 53, 1 95-6 Bad faith see Improper purpose
civil disorder and, 201 , 497 , 499-501 Bagehot, Walter, on role of monarch,
power, subordination to, 195,
civil 97/7., 99

197-8,497,499-501 Bail; 447, 452, 456

courts-martial, 196, 199-203,454, 501 Ballot

appeal court, 200-^01 , 202-3, 203-4 papers, 238-9, 240

private members’ bills, 266
jurisdiction over civilians, 202-3

706 index
 ;; ,, , 3 ;1 ,

private members" motions, 278, 2L i 24— 5 , 2 /, i /,, •• 0 :

secret, 238 450,461,506

Bank of England, 208, 216, 277, 278 Canadian Bill of Rights, 88/*., 44041
Bills European Convention, 91,41 1/*.,
amendments, 227, 230, 237 272, 27 6,
, 412/*., 441-2

293-4,295,296,297 Northern Ireland, 28, 439-40, 630-3 1

Cabinet Legislation Committees, 161 633-4
265-6,331 United States, 16, 34, 245,451
committee stage, 261 , 268-71 Binding-over orders, 447-8, 489, 492,
consolidation, 82, 255, 265, 270 493
drafting, 265-6, 270, 365 Bishops, 108, 122, 155,222,223,288,
hybrid, 271 292/z.,302

introduction and first reading, 266-7 Black Rod, 291, 314

Law Officers of the Crown, 266, 270, Blackstone, William
331,366 on parliamentary sovereignty, 70
Lords’, 266, 272, 293-4 on prerogative, 113
Money,44,48,56,82n.,86«., 106,224, Blasphemy, 462, 473-4
228,294-5 Boundary Commissions see
money resolution stage, 224, 266, 268, Constituencies
272.275.276.278.294 Breach of confidence, 457, 468
pressure groups, 263-4, 265 Breach of statutory duty, liability for,
prior consultation with interests, 214,398,464,603-4
263-4,265,276,398,547 Breach of the peace, 445, 448, 449, 459,
private, 71«., 82-3, 85, 228, 230, 231, 477, 478, 492, 494, 495-6
255.267.271.293.295 British Airports Authority, 2u9

private members’, 224, 227, 228, 231 British Airways Board, 209

260, 263, 266, 268, 282, 365,398 British Board of Film Censors, 467, 575

provisional order confirmation ,271, British Broadcasting Corporation see

295 329 Broadcasting

public, 266-73, 276-8, 294 British constitution

report stage, 271 characteristics, 324

royal assent, 44, 45, 54, 82,85, 86, 106, sources, 3944
272.295 unwritten, 1 7-1 8, 24-8, 32
second reading, 261 , 267-8 British Council, 176, 177/z.,233

Speaker’s certificate, 48, 86,254, 295 British Docks Corporation, 210

statute law revision, 82, 84/*., 85, 106, British Empire, 640

224,270,365 British Gas Corporation, 210

ten-minute rule, 267 British Islands, 634
third reading, 271 see also Channel Islands; Isle of Man

see also House of Commons House ;

British protected persons, 1 34, 233/t.,

of Lords, Injunctions, Legislative 406,408,423,424,425

process; Northern Ireland see also Act of State ; Allegiance

Parliament Acts ; Scotland Citizenship and nationality;

Wales Protection

Bill of rights British Railways Board, 210, 21

constitutional guarantees and, 20, 21 British Steel Corporation, 210, 21

Index 707
 1

British subject, 232-3, 405-9 see also Privy Council and, 138,
144, 152
Citizenship and nationality resignation, 102, 103, 152,
153, 157-8,
British Tourist Authority, 176 165,166
British WaterwaysBoard,210,213 secrecy, 138,160,168-9,472,611,618
Broadcasting Secretariat, 147/?., 154, 158
British Broadcasting Corporation, Secretary to, 158-9, 170, 197
J21, 176,208,210,211,216,217, statutory recognition, 147,619
.218,465-5 unanimity, public, 168-9
complaints, 21 8, 465 see also Conventions of the
elections and, 23 1 , 250 constitution ; Government;
licensing of, 465 M inisterial responsibility Prime
;
marine, 635 Minister
see also Independent Broadcasting Cable and Wireless Ltd, 206, 208, 216
Authority Canada, 16,20, 30,46-7,406
Budget, 164/7., 167,273,275-6 .
bill of rights, 88/?., 440-41
Business Committee of House of constitutional amendment, 648 -

Commons, 254//. Censorship

By-elections, 239, 244//., 246/z., 249, 260 broadcasting, 465-6
By-laws, 329 cinema, 466-7, 575
confirmation, 332, 399, 551 ‘
D ’
notices, 464, 466, 525
tests of validity, 337, 340-41 , 395,486, judicial proceedings
551,553,581-2 reports, 464
undertaking not to make or revoke, Press, abolition, 463
ineffective, 73, 395-6, 576 wartime, 464
theatre and plays, 466
Cabinet, 21,33, 36, 44, 50, 53, 58, 59, Central Electricity Generating Board,
146-75 209
collective responsibility, 53, 60/z., 148, Central Policy Review Staff, 159, 161,
167-9 189,285
committees, 58, 153,155, 157, 158-61, Certiorari, 200, 234«., 250, 350, 422,
197,265 516, 549, 555, 556, 584, 585-7, 596
functions, 147, 158 discretionary, 585, 587
‘leaking* and ‘ briefing’, 1 69, 472 error of law on face of record, 422,
meetings, 157 540,555,556,585
membership* 152, 174-5 grounds for issue, 585
Office, 53, 146-7, 1 53-4, 1 58-9, 169 locus standi, 588
Devolution Unit, 141/?., 158/?. non-statutory tribunals, 587
origins, 140//., 146,223 purported exclusion, 553, 555-7, 596
papers Cession of territory, 126
Crown privilege and, 61 Ceylon (Sri Lanka), 17,38,47,49,65,
Parliamentary Commissioner and, 75, 89, 299/7., 354/7.
618 Chancellor of the Exchequer, 148, 152,
parliamentary executive, 29, 33, 36, 161,166,174,179,273-
37,146-9,152,229,244 Channel Islands, 382, 634-8
Prime Minister and, 58, 59, 146-72, appeals from, 141 635 ,

229 citizenship and, 406, 408, 412n.

708 Index
 81 , ,

EEC and, 637 Civil Service Department, 149, 182,

history, 636 187.188
Home Secretary and, 366, 634 decisions by, 1 81, 1 84, 1 85, 340-41
legislation by, 1 38, 634-5,637 518,526,528
legislation for, 91,124, 138, 634 definition, 180
Privy Council and, 138,634-5 disqualification for Parliament, 182,
United Kingdom responsibilities, 635 245
Chief Constables Police; Natural Fulton Committee, 166, 182/z., 185a.,
justice 186.188
Church of England, 97, 108, 122, 243, impartiality, 34, 1 66, 1 8 1 1 86 ,

329 legislation for, 39-40, 122, 139, 187,

archbishops, 100, 122, 137,288 321
bishops, 108, 122,155,222,223,288, Ministers, relations with, 34, 1 64,
292«.,302 165-6,181,187,283,537,612
ecclesiastical courts, 143, 530, 643/2. official secrecy and, 1 83-7, 468, 472,

General Synod, 122, 329 608,610-11

Lords Spiritual, 288 organization of service, 187-8
monarch as Supreme Governor, 97, pay and superannuation, 1 87-8, 1 91
108,122 600-601
Church of Scotland political activities, 1 82-3, 245
Episcopalian, 243 Prime Minister and, 149, 1 87
Established, 72, 86, 108, 111, 243, 628 private interests, 183
Church of Wales, disestablishment, recruitment, 187
.243,296 security procedures, 1 91-4, 462
Circulars, departmental, 190, 330,400, tenure, 1 90-9 1 , 600-60
514 unfair dismissal, 189-90
Citizens’ Advice Bureaux, 616 Whitley Council, 1 88
Citizenship and nationality, 405-9 Clearance order, 523
act of State and, 1 33-6 Clergy, disqualification for
British subjects, 233n., 406-9, 424 membership of House of Commons,
Commonwealth legislation, 233, 243,246
406-7,425,651 Closure of debate, 254, 261-2, 334
United Kingdom and Colonies Coke, Edward
acquisition, 407, 412 on parliamentary sovereignty, 70/2.
immigration restrictions, 409-16 on prerogative, 69, 1 1
loss, 408, 527 Collateral attack, 337, 550
‘United Kingdom nationals 412n. Colonies, 642, 643-9
see also Allegiance ; Immigration appeals to Privy Council, 46-7, 141,
restrictions ; Deportation 650/2.

Civil Aviation Authority, 176, 207, conquered or ceded, 1 14, 126, 138/z.,
209/2., 521, 535, 576 643
Civil List, 112,278 constitutional amendment, Sin, 644
Civil servants disallowance of legislation, 647
accessibility, 1 84, 536 extraterritorial legislation, 645, 648
anonymity, 166, 183-7 independence, steps to, 644-5
Cabinet committees and, 161 internal self-government, 644, 646

Index 709
 ; 5 ,

Colonies - continued Community Relations Commission,

judicial tenure, 141 , 355, 364 433,434
legislative powers over, 114, 126-7, Comptroller and Auditor General,
137,321,326,643-4 177, 211,21 7, 279-80, 617, 621*.
reservation of bills, 646, 647 Compulsory purchase orders, 329-30,
repugnancy doctrine, 46, 645, 647, 399, 520, 528, 533, 542-4, 552
650 applications to quash and restrain,
settled, 126-7,643 542-3, 549-50, 552, 557, 558-9, 583
Commission for Racial Equality, 176 procedure on objections, 541-4
Common Travel Area, 415 see also Inquiries, public; Inspectors,
Common-law misdemeanour, 446, Departmental
478-9,482 Condominia, 642
Commonwealth, 47/*., 49, 52, 639-58 Conscience, freedom of, see Religion
common allegiance, disintegration of, and Conscience, freedom of
98,408*., 652, 654 Conseil d’Etat , 37, 5 1 2*. , 6 1
cooperative activities and agencies, Consolidated Fund, 254, 275*., Ill,
176,654,656 278,280,358,359,617
EEC and, 656 Conspiracy, criminal, 457, 471-2, 476,
full membership, acquisition, 653 484
exclusion from, 655 to corrupt public morals, 479-80,
incidents of, 654 482-3
Head of, 98,431, 653 to outrage public decency, 482
Heads of Government, meetings of, to trespass, 457, 485, 491
641,654,655,658 Constables see Obstructing a constable;
High Commissioners, 656 Police
law, vestigial, 652, 656-7 Constituencies, delimitation of, 87,
parliamentary sovereignty and, 47*., 234-8, 297, 335, 341 , 366, 527
61,74,90-91,645,656 Boundary Commissions, courts and,
preference, 657 236-8,341,591*.
relations, 655-8 procedure, 235-7
republicanism, 75, 98, 425, 645, 653-4 Constitutionalism, 19,25, 34
rules, flexibility, 652 Constitutions, 15-31
secession, 645, 649, 653, 655, 657 Australia, 1 6, 19-22, 30, 47, 64, 75

South Africa and, 655 Canada, 1 6, 20, 30, 46-7, 406, 648
special membership, 641 652, 657
, Ceylon (Sri Lanka), 17, 38, 47, 49, 65,
see also Dominion status 75, 89, 299*., 354*.
Conventions of the Constitution Cyprus, 1 7, 22-3, 24, 3 1 , 68, 1 35
Commonwealth Foundation, 658 France, 1 In , 25, 3 1 , 68
.

Commonwealth immigrants see Ghana, 19,29

Immigration restrictions India, 1 6, 20, 29, 48, 49, 65, 98, 3 1 8*.
Commonwealth Secretariat, 652, 653, 327*.
656,658*. Ireland, Republic, 49, 65
Commonwealth Sugar Agreement, 657 Israel, 28
Commonwealth War Graves Kenya, 29
,
Commission, 176, 658 Malaysia, 20, 24, 30, 52*., 98*., 654
Communalism, 22-3, 430, 629-34 Mauritius,58,76

710 Index
 Assizes, 347,
New Zealand, 24, 28, 287 of Criminal Appeal,
349
Nigeria, 52«., 68 Chancery Division, 352, 515,
521
Pakistan, 67, 68 Chivalry, 502n., 530
655
South Africa, 75, 88, 98, Constableand Marshal, 502
Switzerland, 30
County Courts, 351, 532
Tanzania, 23, 29 Courts-Martial Appeal,
200-201
Uganda, 67 202-3,300,454
125
West Germany, 17,29, 30, Crown, new, 347-50, 351
,353, 365
see also United States
Crown, old, 347, 349
Consumer bodies, 207, 616 Ecclesiastical, 143, 530,
643 n.
361-2
Contempt of court, 311,317, ,

Election, 25 1-2, 3 10
468,366,476,593 352
386, 395-6, Family Division, 351 ,
Contracts, public, 197, 273,
Juvenile, 347
445 ’ 525 585, 589
.
AKX
463 King’s Bench, 51 8, 555,
commercial broadcasting, Magistrates’, 345-7, 349,
350, 351,
396-7 , 598-602,
Crown liability,
606-7
367,521 „„
Relations, 283
.

National Industrial
*

190-91,
service under the Crown, 359,366
196-7,600-601
Piepowder, 529
Conventions of the constitutional, '
Prize, 130, 143
90-9 1 99-108 ,
33 35 , 42, 44-62 ,
,
Quarter Sessions, 347 , 348
144-72 Requests, 530
ascertainment, 55-61 Restrictive Practices, 207,
208, l

codification, 49-52, 61 359,519,531 .

courts and, 44-9 - Small Claims, 351
53-5,61-2
law and, 21 , 33,44-9, Stannaries, 529
obedience to, 54-5 Star Chamber, 512, 518,
530, 585
Commonwealth; of Lords
see also Cabinet; see also Coroners House
;

Dissolution of Parliament Prerogative, royal ; Privy

Judges
Dominion status ; Governor- ;

responsibility, Council
General; Ministerial Down, 166, 525-6, 61
Minister Crichel
Monarch Prime
; Compensation
Criminal Injuries
Cook Islands, 649 Board, 529, 534, 535,587
Coronation, 109 Committee,
Criminal Law Revision
Coroners, 360, 526, 530 367,451-2
22 1,222, 287,
Council, King’s, 37, 220,
518.585 „ 113, 121, 123,
and Queen, 109, 111-12,
,
331, 365-6,
Council onTribunals, 178, 598,602
527, 536-7, 540,
546-7, 570, 616
divisibility, 99, 109
complaints to, 537,547 98, 99, 108-9, 650
538, 540, royal style and titles,
consultative functions, 331
,
pleasure,
signification of the royal
547,570 108,112-13,163
Counsellors of State, 111 24,33, 66, 86,
succession to the throne,
176
Countryside Commission, 99,108-9,146,222
Courts, 345-50 Allegiance;
see also Abdication;
Appeal, 350, 351-2, 533
of

Index 711
 1 ; ; ,

Crown - continued qualified privilege, 305, 307,475

Commonwealth Coronation ; administrative tribunals, 360, 475
4
King can do no wrong ’ ;
M onarch MPs, 306-7, 475
Prerogative; Privy Council ; Royal press reports, 307, 462, 474
family ; Royal marriages slander or libel, 474
Crown Estate Commissioners, 1 12, 177, Default powers, 214, 399, 517, 584, 596
629 Delegated legislation, 37, 39-40, 72-3,
Crown immunity, 121-4, 213, 604-5 87, 141-2, 234—8, 287, 296, 321-41
Crown privilege, 114, 186, 41 9/z., administrative tribunals and, 323-4,
<507-75,618 513
oralevidence, 608-9, 61 Committee on Ministers’ Powers and,
Crown proceedings 321,324
armed forces, 1 99, 601 , 604 consultation with interests, 322, 325,
contract, 1 89-91,196-7, 577, 598-602 331,337
discovery, 607 drafting, 331
employment, 1 89-91 , 196-7, 600-601 ‘Henry VIII clause’, 327-8
judicial acts, 605 Hewarton,321
prerogative acts, 604 history, 324-5
remedies, 606-7 House of Lords and, 287, 291,296, -

tort liability, 602-6 335,336

Crown revenues, 1 1 1-1 2, 1 21 hybrid orders, 335
Crown servants, 1 20-21 180, 213, 372, , inquiry rules, 331-2, 541
394,602,603,605 judicial review, 236-7, 327, 337-41
injunctions and, 593, 606-7 laying, 235, 332, 333-4, 335-6, 338,
mandamus and, 236/?., 237, 590, 607 551
Customs and Excise, 1 77, 1 81 , 205, 274,] parliamentary proceedings,
483/?., 518,533,591, 613/?. affirmative and negative resolution
procedures, 235, 237-8, 260, 296,
*D* Notices, 464, 473, 477-8, 525 333-7,351-2
Decisions see Administrative law publication , 330, 332-3, 337
Declaratory orders and judgments, 213, purposes, 325-7
354, 397, 549-50, 584-5, 586, retroactive, 328, 335
595-5,596,606,607 select committees on, 323, 335-6
Crown and Crown servants against, standing committees on, 334
593,600-601,607 statutory instruments, meaning, 321
interim, not awarded, 593, 607 329-30
locus standi, 213, 593/z. subdelegation, 328-9, 330, 336, 341,
nationalized industries, 213-14 505.575
racial discrimination, 434 taxing power, 328
statutory tribunals, 556-7, 594-5 see also Delegatus non potest delegare ;
subordinate legislation, 337 Legislative process ; Special

Defamation, 474-6 Procedure Orders

absolute privilege, 305, 307, 360, Delegatus non potest delegare, 328, 340,
474-5,516,612 386.575 •

.
parliamentary privilege and, 305, 307, Delimitation see Constituencies
316,475 Demise of the Crown, 226

712 Index
 88 2 ,

Demonstrations, 485-92 see also abuse see Abuse of discretion

Meetings; Processions Public order
;
allocative functions, 514-15, 516,517,
Departments and Ministries, 1 75-8 571
andpassim for individual duty and, 516-17, 574-5, 579, 589-90,
Departments 601
local and regional devolution, 204-5, fettering, 73, 190, 389, 395, 573,

627-9,630-34 574-5,6 01
quasi-government bodies, 176-8, 579
‘Judicial’, 569,

204,208 law enforcement, 368, 370-72, 517

sub-Departments, 177-8 non-exercise, wrongful, 517, 574-7,
see also Ministers 577
Deportation orders unreviewable, 1 1 5, 556
aliens, 123, 129,408,418-20,454, 566 see also Delegatus non potest
appeals, 420-23 delegare ; Improper purpose;
British protected persons, 41 Irrelevant considerations;
of the Republic of Ireland,
citizens U nreasonableness
416,418,420 Dismissal, unfair, 191 , 387, 534, 570,
Commonwealth citizens, 417-1 8, 420 600-601
EEC nationals, 420 Dissolution of Parliament, 24, 29, 40,
extradition and, 419, 571 45, 51 , 60, 81, 93, 102-5, 149, 153,
non-patrials, 41 4, 41 8-20 157.225
recommendation for, 346,41 defeat in Commons on issue of
Detention, preventive see Preventive confidence, 33, 45, 101-2, 149
detention demise of Crown and, 226
Detournement de pouvoir, 579 effect of, 81,225

Development Commission, 176, 178, insistence on, 51 , 93, 102

204-5 Prime Minister’s advice, 60, 102-6,
Devolution, 639-40 149.153.157.225
Diarchy, 30-31 procedure on, 102-3, 225
Dicey, A. V. refusal of request, when proper, 5 1

oh administrative law, 1 5, 51 1-1 103-6,150

on constitutional bills of rights, 439 District auditor, 382, 388, 394, 399/1.,

on conventions of the constitution, 518

45-6,53-4 Domestic tribunals, 142, 351,529, 585
on delegated legislation, 324 Dominion status, 39, 45-6, 62, 74-5, 98,
on freedom of expression, 462 1 42, 406, 552/t„ 644, 646-9

on judge-made constitution, 40 common allegiance, 406, 652

on prerogative, 1 14-15 ‘Dominion’, 45, 641 , 646, 647
on rule of law, 35, 162,511-12 royal style and titles and, 98-9, 108-9,

sovereignty, 63-4 650

Diplomatic immunity, 114, 128-9, 417 succession to the throne see Crown
Commonwealth;
see also Colonies;
Director of Public Prosecutions, 345,
367-9,378,470 Crown Governor-General;
;

Sovereignty of Parliament
Directory provisions, 85, 337, 389,
551-2 Donoughmore Report see
Administrative law
*
Discretion

Index 713
Droit administratis see French Entry
*
administrative law forcible, 491
Due process of law, 1 6, 450 powers, 370, 390, 450, 459, 489-90
Duty to ‘act fairly’, 409-10, 486, 542, Environment, Secretary of State for,
561 , 565, 568, 571-2, 587 see also creation of office, 174
Natural justice Error of law see Jurisdictional defects
Law and fact
Economy, Government and the, 215-18 Estimates, 274, 278-80
Elections, 225, 232-52 supplementary, 278
absent voters, 239 Estoppel, 388, 395, 551 , 573-4, 577, 600
alternative vote, 240 European
ballot papers, 238-9 Commission of Human Rights, 4 12w.,
by-elections, 239, 244 24 6n 249, . , 441
252,311 Convention on Human Rights, 91
campaign, conduct of, 249-51 41 1»., 412*., 441-2
candidates Court of Human Rights, 41 2n , 441 .

nomination, 249 European Communities

selection, 246-9 agricultural policy, 206/i., 284, 63 8«.,
disputed, 246,251-2, 311,382 660
expenditure, 234, 250 association agreements, 658
‘first past the post’, 239, 639 Channel Islands and, 637
franchise, 232-4 Commonwealth and, 656
local government, 382 Community law, 42-3, 78-81 , 1 30,
offences, 233-4, 238-9, 242-3, 250 273,320,660
proportional representation, 240-41 Community preference, 657
register, 232, 233-4, 238 constitutional effects of British
registration officer, 232,234, 251 accession, 26, 39, 42-3, 78-81 , 91
returning officer, 225, 239, 241 , 249, 126, 1 30, 264, 285, 320, 657, 660-61
251,316 662-3
service voters, 1 99, 233, 239 constitutional structure of, 42-3, 78,
see also Constituencies; General 272-4,659-63
election, functions of ; House of default power, 663
Commons delegated legislation and, 320, 328-9,
Electricity Council, 209 334,337
Emergency ‘direct applicability’, 43, 78, 126, 660
debate in House of Commons, 28 European Assembly, 245, 662
industrial, 507, 576 European Court of Justice, 660,
legislation, 322, 326, 327, 328, 338, 662-3
'
463-4,506-7,632-4 immigration, deportation and EEC
prerogative in, 69, 113, 1 14, 1 16, 136, nationals, 41 1-12, 413-14,415-16,
505 417
state of, 506-7 Isle of Man and, 638
use of troops in, 497, 499-504 nationalized industries and, 218 n.
Employment Appeal Tribunal, 539 Northern Ireland and, 416
Enforcementnotices, 388, 521,528, parliamentary scrutiny, 273
560tz. referendum (1975) and, 93

714 Index
 9 , ; , ;

government aut nor: ties

regional policy, 2Q6n.
Nationalized industries Taxation
sovereignty of Parliament and, 79—81,
;

Treasury
90
First Lord of the Treasury, 148, 149,
taxation by, 275
179
treaty-making by, 79, 1 26, 1 27
Forcible detainer and entry, 491
treaty-making by member States, 79
Foreign Compensation Communion,
Excess votes, 278
127, 293, 522, 534, 540, 557-8
Exchequer and Audit Department,
177,279-80 Foreign relations, royal prerogative in,
124-36
Expenditure, public
Consolidated Fund Services, 215n. t Forestry Commission, 176, 629
Franchise, 232-4
278,280
disqualifications, 233-4, 238, 241
estimates, 274, 278-80
461
Estimates Committee, 279, 284
government, 382
Expenditure Committee, 217, 279, 285 local
qualifications, 232-3
local authorities, 392-3
residence, 233
nationalized industries, 211,217
students, 233
National Loans Fund, 21 1,278, 280
PESC.161 Freedom of association and assembly
see Meetings; Processions; Public
Public Accounts Committee, 42, 2 17,
276-7,280,284 order \

Supply Services, 278

Freedom of speech and expression,
461-83,489-97
Treasury control, 21 1, 228, 273-4, 277,
399 in Parliament, 304-10

see also Bills Comptroller and

;
French administrative law, 37, 396,
Auditor General ; Exchequer and 511-12,579,615
Audit Department Frequency of Parliaments, 223-4
Export Credit Guarantees Fugitive offenders see Extradition
Department, 177
Extradition, 427-31, 453-4 Gaming Board' for Great Britain, 518,
to Commonwealth countries, 427 536, 568/?., 612
430-31 General election, functions of, 103-6,
deportation and, 4 1
154-5,158,225,239

to foreign countries, 427-30

Government
dismissal, 101-2
political offenders, 428, 429, 431
formation, 132, 149-55, 173, 174-5
to Republic of Ireland, 427
relations with Parliament, 33-4,
Extra-statutory tax concessions, 330,
90-93, 158-9, 161-72,224,243,
591,622
260-62,278,280-85
resignation, 101,102, 149, 157, 166
Fact see Law and fact
Federalism, 16, 19-20, 22,21, 30, 33,
Governor-Gener al
63,76-7,127,649 appointment, 46, 58, 645-6
discretionary powers, 49, 58, 99, 646
Fettering discretion see Discretion
duties to act on local ministerial
Film censorship, 466-7, 575
advice, 49, 99, 646, 647
Finance, publics Bills; Budget;
Expenditure, public; Local removal, 58, 647

Index 715
Greater London Council see Local elections see Elections
government authorities franchise see Franchise
Great Seal of the Realm, 103,113, 125, guillotine, 262, 269/2.
179 journals, 41 , 84, 223, 252, 254-5
Green Papers, 265 ‘kangaroo ’,262
Guernsey, 635, 636 Leader of, 41-2, 140-41, 152, 161,258
Members disqualifications, 37, 143,
Habeas corpus, 200, 317, 350, 352, 360, 198,241-5
41 8, 423, 428, 429, 43 1 452-6, 505, effect of, 246, 252
549,584, 609/2. how determined, 143, 245
appeals, 454-6 expulsion, 245, 311,314
damages and, 452, 456 facilities, 256-7
emergency, 452, 454, 456, 505 private interests, 263, 308-9
procedure, 453 salaries, 256-7
successive applications, 453-4 suspension, 254, 314
Hewart of Bury, Lord oath, 31 1-12
on administrative law, 511 Opposition Leader, 42, 53, 103, 147,
on delegated legislation, 321 149,229,257,270
High Court of Parliament, 37, 69, 83, role of, 92, 229-30, 257-9, 278, 281
223,298 origins, 223, 287
Highlands and Islands Development pairing, 259
Board, 207 party organization, 228, 257-9
Highway privilege see Parliamentary privilege

obstruction, 449, 463, 487, 488 , 491 procedure see Bills

non-repair, liability for, 397 questions, 164, 165,214,216,230,
nuisance, proceedings in respect of, 255-6, 260, 281-3, 305-6, 333, 359,
491,550, 592/7. 376,615
Home Secretary, 123, 140, 164, 174, quorum, 272
235-8,350,366 resolutions, legal effect, 87, 196, 245,

Honours, 100, 107-8, 155, 620 249, 275, 311-12,316, 330, 486
monarch’s personal discretion, 107 Serjeant at Arms, 254, 3 1 2, 3 1
Political Honours Scrutiny Speaker see Speaker of the House of
Committee, 140, 66 n. Commons
Horserace Totalisator Board, 216 Supply days, 1 65, 215, 260, 273
House of Commons Whips, 42, 53, 167, 171,257-9,2 66,
access to, 486 285/z.,309
*
adjournment debates, 230, 260, 281 see also Parliament

allocation of time, 260-62 House of Lords

Business Committee, 254«., 262 abolition, 33, 87, 89, 298

chamber, 255-6 attendance allowance, 290

closure, 254, 261-2, 333-4 Black Rod, 291, 314
Committee of Selection, 269 coercion of, 105-6, 294, 297-8

Committees see Bills ; Select Committee of Privileges, 298-9

committees of the House of composition, 288-9
.Commons conflicts with Commons, 51, 105-6,

cdntempt^ee Parliamentary privilege 294-8,316

'716 Index
 ;; , , ,

court as, 37, 51 , 54, 77,81, 201 221 , judicial, 359-61,452,605,612

293, 298-300, 316, 349-50, 352, 353 sovereign, f28, 605
delaying powers, 106,293-4 state, 128
disqualifications, 289 waiver, 129
functions, 230, 266, 291-4 Impeachment, 1 63, 222, 298, 304/2.
hereditary peers, 105-6, 288-9 Improper purpose, 327, 338, 340, 419,
Law Lords in, 37, 289, 293, 294, 300, 553,577-8,582
302 bad faith, 48, 396 397, 553, 577
,

Leader of, 291/z. fraud, 553, 586

leave of absence, 289-90 Incitement to disaffection, 371 , 470
life peers, 289, 290, 300 Incitement to racial hatred, 432,478
Lord Chairman of Committees, 272, Income tax commissioners, 521 , 533,
291 539
Lord Chancellor as Speaker, 291, 365 Independent Broadcasting Authority,
Lords Spiritual, 222, 288, 289 176,216,218,250,465-6
origins, 223, 287 breach of duty, 465-6, 593/2.
private bills, 271, 293, 295 complaints, 218
private members’ bills, 295, 297 n. Independent schools tribunal, 535
reform proposals, 287, 300-302 Industrial Development Executive, 207
revising powers, 227, 237, 272, 293-4 Industrial Reorganization
Whips, 42, 171,257 Corporation, 207
women, 288 Industrial tribunals, 387, 534, 535, 539/2.
see also Law Lords Parliament Acts,
;
Injunctions, 21 3, 381//., 382, 388, 549,
Parliamentary privilege; Peerage 584,58 6,591-3
Attorney-General as plaintiff, 213,
Immigration restrictions, 409-23 363, 367-9, 381/2., 392, 394-5, 468,
appeals, 41 8, 420-23, 440, 454 592-3
Commonwealth immigrants, 92, 391
f

Crown servants as defendants, 236/z.,

’

409-10,431,441/1. 592,606-7
EEC nationals, 41 1-12,41 3-14, legislative process and, 85-6, 23 6«.,
415-16,417,420 381//.

Government grants in respect of, 390, local government disqualifications,

420«. 382
immigration officers, duty to act‘ locus standi 213, 465, 593
,

fairly’, 409-1 0,573

mandatory, 550, 591
patrials and non-patrials, 411-15 racially discriminatory conduct, 432,

rules and instructions, 1 84-5, 330, 435

334/2., 412, 577 trespass, 462, 485

Secretary of State’s personal Inland Revenue, 177, 184, 205, 274,

decisions, 421-2 330,390,620
see also Adjudicators ; Aliens Inquiries, public, 519, 521 523-3,

Citizenship and nationality 541-6

Deportation functions, 525-8

Immunities from suit Us inter partes 542

,

local, 516, 520, 523, 527-8

consular, 128
diplomatic, 128, 414, 417 Saffron Walden chalkpit case, 545

Index 717
Inquiries, public - continued legislation for, 635
scrutiny of, 546-7 Privy Council Committee on, 638
Inspectors, Departmental Standing Consultative Committee,
conduct of hearings, 526, 528, 543 639
determination of planning appeals, U.K. responsibilities, 635, 638-9
181,518,528,535,545
recommendations, procedure where Jersey, 636-7
Minister rejects, 546-7 see also Channel Islands
report, duty of disclosure, 1 83-4, 544, Judges, 347-8, 351-64
566 absolute privilege, 305, 360, 452, 474,
Insulting words and behaviour, 476-8, 605,612
482, 492, 495/z. , 496 appointment, 21 , 23, 355-7, 364,
Interception of communications, 440
1 1 6, 140, 457, 463, 471 , 483, 525 barristers as, 347, 356-7
Interest, disqualifying in adj udicator
*
Circuit, 347-8, 351, 355, 356, 364
383,561-2 Commonwealth, 141 , 355, 364
Interrogation of suspects, 140, 371, county court, 347, 35 1 , 357
376-7, 444, 450-52 Crown servants, whether, 372/*., 605
International law disqualification for House of

common law and, 70-7 1,125, 130 Commons, 37, 245, 358
parliamentary sovereignty and, 70-71, immunity from suit, 359-61 , 452, 605,
130 612
prizecourt,130,143 independence, 34, 47, 353-64
Intervention Board for Agricultural parliamentary questions, 283, 359
Produce, 177,206/*. political activities, 245, 356, 358-9 see
Ireland also Law Lords

Act of Union, 25-6, 71-2 promotion, 357

citizens of Republic in U.K. recorders, 347, 355, 356, 364
franchise, 232,233 retirement, 364
immigration and deportation, 407, rules,202 n. ,371,451
408,410,412,415,416 salaries, 278, 354, 358
status, 232, 245/;., 408, 415, 41 solicitors as, 347, 356

extradition to, 427 Supreme Court, 347, 356, 357

Irish Free State (Eire), 29,58, 65, 71/*., tenure, 20, 23, 29, 38, 142', 353, 359,

98,630,646,655 362-4
peers, 233, 289/1. Judicial Committee of the Privy
secession from Commonwealth, Council, 43, 46-7, 137, 138, 141-3 ,

646 246,635
Irrelevant considerations, 393, 574, advisory opinions, 143, 246, 306
578-80 appellate j urisdiction, 46-7, 141-3,

Isle of Man, 635, 638-9 522, 635, 641 n.

appeals from, 141 on disqualification for

declarations

citizenship in, 406, 408 membership of Commons, 143,

EEC and, 638 246,310
Institutions, 635, 638-9 dissenting opinions, 141

legislation by, 634 ecclesiastical, 143

-
718 Index
 5 1 8 ;

professional disciplinary, 142-3, 523 Kclsen, Hans, 66-7

removal of Commonwealth judges, ‘King can do no wrong’, 109, 114,
and, 142 118-19,163,602
resti ictions imposed in King’s Bench, Court of see Courts
Commonwealth, 46-7, 141-2, 647/7.,
652 Lands Tribunal. 391, 522, 529, 533,
Judicial functions, 36-8, 323-4, 516, 539
'
523,586-8,616,620 Law and fact, 554, 559-61 , 569
Judicial power, 21 38, 354-5 error of law, 549, 555-8, 559, 560, 561
; ,

Judicial review of administrative acts appeal, 555

and omissions, 41 , 287, 548-82, on face of record, 422, 540, 555, 556,
614-15 586,589, 594-5
appellate, 520, 540-41 , 560/i. , 583-4 factual error, when reviewable, 556
collateral attack, 337, 550 questions of degree, 559-60
defects of, 612, 614-1 Subjective formulation of powers, 555
emergency powers, 339 Law Commissions, 1 78, 265, 266, 270,
exclusion, purported, 236/*., 32.7, 335, 365,6 14
338-40, 340-41,512, 553-4, 557-9, Law Lords, 37, 51 , 54, 1 33, 137, 141,
586,595-6 289, 300,352,356,358/z.
grounds for, 540-41 , 549-50 see also House of Lords
political questions, 128-32, 577-8 Law Officers of the Crown see
prerogative powers, 1 15 Attorney-General Scotland ;

remedies, 583-97 Law Reform Committee, 365

supervisory jurisdiction, 350, 355, Legal aid and advice scheme, 366, 367,
519-20,540-41,549-50 539
see also Delegated legislation; Legislative functions, 36-7, 324-5,
Discretion Jurisdictional defects;
;
329-30, 513,5 14, 5 1 5, 57 1 -2, 617
Law and fact ; Natural justice; Legislative process, 91, 161,228,
Ultra vires doctrine 262-80,291-8,320-41
Judicial Service Commissions, 355 see also Bills; Delegated legislation;
Jurisdictional defects, 554-9 Government; House of Commons;
civil liability and, 360, 662 Parliament Acts
error within jurisdiction contrasted, Libel see Defamation
555-6,557 Licensing see Administrative tribunals;
refusal of jurisdiction, 574, 590 Local government authorities
see also Law and fact Naturaljustice
Jury, 348-9, 360, 361,462 Lobby correspondents, 169
Justices of the Peace Local government authorities, 379-401
appointment, 355-6 ad hoc authorities, 390,400
immunities, 360 aldermen, 382
judicial functions, 345-7, 35 audit, 393-4 see also District Auditor
licensing, 517 boundaries, 381
local government by, 37, 381 51 , by-laws see By-laws
public order and, 373, 496 central government, relations with,
tenure, 346-7, 36 1 , 364 206,391-3,398-401
see also Magistrates see also Police

Index 719
Local government - continued Lord Chancellor, 37, 1 10, 1 1 3, 174, 1 79,
Commissioners for Local 225, 227, 291,331, 352, 355-7, 365,
Administration, 384 461«.,467, 537, 545, 546
committees, 381 385-6, 51
, Lords of Appeal in Ordinary see Law
complaints against, 384, 622 Lords
contracts, 388, 395-6
councils, 380 Magistrates, 345-7
county boroughs, 380 legal liability, 360,497
Crown privilege and, 612 professional, appointment, 355, 356,
default powers, 399-400 357
delegation, 381 386, 388, 517
, tenure, 361, 364
elections, 382, 385 Maitland, F. W.
expenditure, 386, 392-3, 579, 592 on administrative law, 51
fiduciary duties, 386, 393, 580 on prerogative, 1 15 n.
finance, 390-94 Maladministration, 165, 230, 383-4,
grants, central, 391 618-20
licensing, 351 , 383, 515-16,519, 564, Mandamus, 200, 214, 234n., 230w., 237,
566-8,573-4 395, 423, 466, 550, 565, 575, 579,
loans, 392 584,585,586,589-91,596
London, City, 393«. alternative remedies, 590, 591 , 595
London, Greater, 380, 390, 393 Crown servants, to, 236/z. , 237, 590.
meetings, 385 591,607
’

publicity, 385, 400 duty to exercise discretion, 575-7,

*

members 579,590-91
disqualifications, 382-3, 394 n. jurisdiction, 550, 575, 590
private interests, 383 locus standi 588
metropolitan counties, 379-80, 400 Mandate, electoral, 91
officers, 387-90, 394, 397, 518, 573-4 Mandated territory, 640-41
plaintiffs, as, 395, 594 Mandatory provisions, contrasted
police see Police with directory, 85, 337, 389, 551-2
political parties,385 Marketing boards, 176, 178, 332, 578
private legislation, 86,231,267, 381, Martial law, 68, 501-4
401 w. military law, contrasted with, 199,
prosecutions, 345 501
rates, 120,390-91,393 Medical appeal tribunals, 534-5
services, 206, 380-81 , 399 Meetings
torts, 389-90, 396-7 election, 249

ultra vires doctrine, 389, 392, 395-6, obstructions, when, 487, 488, 492
549-50 police powers in relation to, 485, 488,
Locus standi, 48, 213, 545, 583-4, 588, 489-95,496-8
590,593 public, offences at, 476-8, 486, 488,

London see Local government 489,492-8

authorities ‘right of’, 485-9, 490n.
London Passenger Transport Board, trespasses, when, 462, 485, 487

208 Members of Parliament see House of

London Transport Executive, 210 Commons

720 Index
Mental health review tribunals, 53 5, Commonwealth
540 Head of, 98, 431, 653
Metrication Board, 178 republicanism in see Commonwealth
M ilitary law see Armed forces coronation, 109
Ministerial acts, 515 Crown and, 109, 1 1 1-12, 1 1 3, 121 , 123,
Ministerial responsibility, 29, 33, 46, 598,602
50, 53, 54, 61,119, 161-72, 61 9, 620 discretionary powers, personal, 32-3,
collective, 33, 45, 61, 148, 161, 164, 50, 51 , 54, 56-7, 59, 99-108, 149-52
166-72,229,412 incapacity or absence, 111
individual, 50, 53,161-6, 284, 619, 621 personification of the State, 97
legal, 50, 1 19,162 see also private secretary to, Sin., 107
Impeachment religious tests, 108
nationalized industries and, 164, 176, royal style and titles, 98, 99, 108-9, 650
207-8,214-15 signification of the royal pleasure,
Parliamentary Commissioner and, 108,112-13,163
621,623 succession to the throne, 24, 33, 66, 86,
Temporary suspension of, 3 14 99,108-9,144,221,650
Ministers, 168-71 see also Allegiance ; Counsellors of
appointment, 1 52, 1 53 State Crown ; King can do no
;
‘

dismissal, 32, 1 02, 1 52, 1 53, 1 55, 1 80 wrong’ Prerogative, royal;

;

incorporation by law, 179-80 Regency Royal family ; Royal

;

injunctions against, 23 6n., 592, 606-7 marriages Treason ;

mandamus to, 23 6/z. ,

237, 590, 591 Money Bills see Bills ; Parliament Acts
607 Money resolutions .see Bills
membership of House of Commons, Monopolies Commission, 207
152,243-4 Montesquieu, 36
memoirs, 169-70
non-Cabinet, 153, 159, 171,173 ‘Naming an
1
M P, 254, 3 1

private interests, 53, 180 National Bus Company, 210

resignations, 152, 156-7, 164, 165, 166, National Coal Board, 209
167 National Council for Civil Liberties,
salaries, 53, 147, 243 616
Secretaries of State, 175, 179, 180, 181 National Economic Development
transfer of functions, 40, 1 53, 1 80 Council, 178
see also Cabinet ; Governmental National Enterprise Board, 206/2.
Impeachment; Prime Minister National Freight Corporation, 210, 213
Ministers of religion see Clergy National Health Service, 205, 206, 213,
Ministers’ powers see Committee on 400
Ministers’ Powers complaints, 532, 534, 536, 619

Ministries^ Departments Health Sei vice Commissioners, 534

Misfeasance in public office, 397 National Insurance Advisory
Monarch Committee, 178, 332
abdication, 54, 71, 98, 108,226 appeal tribunals, 521 , 534

accession, 108-9 Commissioners, 52 1 , 534, 540

ceremonial functions, 50, 97, 107, Nationalized industries, 176, 204, 205,
111-12,137,138,226 208-18, 521,603

Index 721
 6 , 1

Nationalized industries - continued Assembly border poll, 633

audit of accounts, 211,217 community relations, 630-3
boards and Ministers, 176, 207-8, complaints commissioner, 632
210-12,214,215,216,590 constitutional guarantees, 439-40
consumer bodies, 2 1 7-1 8, 6 1 Convention, 633
Crown servants, whether, 213, 603 devolution to, 26
duties, legal, nature of, 48, 21 3, 590 direct rule, 28, 72 326, 332, 632, 633

parliamentary scrutiny, debate, disorders, 26, 631, 633

215-17 EEC and, 416
questions to Ministers, 164, 214-15 emergency powers, 500/z. 632-3 ,

Select Committee, 215, 21 6-1 8, 284 Government and Parliament in, 630
Treasury, powers, 211, 273 local government, 379, 632
National Loans Fund, 21 1 278, 280 , Opposition, 229, 631
National Research Development Northern Ireland Committee, 269/7.
Corporation, 176 Parliamentary Commissioner, 623,
Naturalization, of aliens and British 632
protected persons, 407 Parliamentary representation, 631
Natural justice, 338, 350, 561-74 parliamentary sovereignty over, 28,
bias, likelihood of, 541-2, 561-3 48-9,58,71,633
deportation and, 41 8-1 9, 566 631-2
police, 376, 498,

disqualification for interest, 383, Privy Council for, 137, 630

561-2 proportional representation, 240-41
duty to observe, when applicable, prosecutions, 632
368,561,565-71 Secretary of State for, 174-5, 332, 632,
extradition and, 428 634
of rules, 561 , 566-7, 569-71
flexibility Nuisance, 396, 449, 487, 491 , 550, 592
inspectors’ reports and, 1 84, 541-2
legal representation and, 572 Obscenity, 462, 478-83
licensing and, 516, 564, 566-7, 568, seizure and condemnation of articles,
571,573-4 462,478,483
lis inter partes, 542, 566-7 Obstructing a constable, 37 1 448-50,
notice and opportunity to be heard, 488,493-6
565-71 Obstruction of the highway, 449, 463,
parliamentary privilege and, 314 487,455,491
police, dismissal, and, 374, 567 picketing and, 449, 487//.
•security procedures, 193-4 Official Secrets Acts, 170, 182, 304, 54 J,

universities and, 565, 568, 571 , 588 367, 368, 372//., 457, 459, 464, 468,
see also Duty to ‘ act fairly
’
471-3 ,525, 618
Nauru, 641, 652, 657 interception of communications and,
Necessity, State, 66n., 68, 459, 460, 504 457
Ne, exeat regno, 1 15/7. Parliamentary Commissioner and,
Nemo judex in causa sua, 561-4 618
New towns, 206 parliamentary privilege and, 304
designation orders, 528, 541-2, 582/7. police officers and, 372/7., 471
Nolle prosequi, 123, 164, 368 prosecutions under, 368, 472-3
Northern Ireland, 630-34 Official Solicitor, 366

722 Index
 2 8 ; , 5

Ombudsman, 23, 616, 617 Select Comrpittee on, 1 86/i., 284-5,

see also Parliamentary Commissioner 618,619,621-2
for Administration Parliamentary private secretaries, 173
Parliamentary privilege, 41 222, 255, ,

Pardon, 1 17, 123, 164, 201 , 350, 367, 303-19

620 communications with Ministers,
Parliament 306-7
abdication, 74-81 contempt and breach of privilege, 308,
adjournment, 227 313-14,315
broadcasting of, 231 , 56n. courts and breach of privilege, 305-9,
courts and, 69-90 312-13,315-19,454
demise of the Crown, 226 criminal offences and privilege, 305
dissolution ^Dissolutionof financial privileges, 224, 294, 304
Parliament freedom from arrest, 222, 304, 310
dur&tion, 223, 224-6 freedom of speech, 304-10, 612
executive influence see Government penalties for breach, 314-15
frequency, 223-4 prerogative and, 3 1
High Court of, 37, 69, 83, 223, 298 Parliament Roll, 84
meaning of, 81-3, 87-90, 221 224, , Parole, 123,350
227-8,229 Parties, political see Political parties
opening, 226, 288 Passports, 115, 121, 123,409,410-11,
origins, 221-3, 287 426-7 571 ,

proceedings in, 42, 84-5, 236-7, 304, immigration control and holders,
305-10, 312, 31 5, 341 359, 577, 610
, 409-10,411-12
prolongation, 86, 225, 297 treason by alien holder, 424, 425
prorogation, 226-7, 316 Patents Appeal Tribunal, 522, 535
Queen’s speech, 226 Peerage, 288-90
royal assent, 44, 45, 54, 56, 82, 85, 86, disclaimer, 59, 246w.,290
106,272,295 disqualification for
sessions, 54, 226-7 membership of Commons, 241, 252
summoning, 225, 227, 506 parliamentary franchise, 233
see also Acts of Parliament; House of hereditary, 288-9, 299
Commons House of Lords
;
Irish, 233, 242, 289
Parliamentary privilege; life, 289, 290,299
Sovereignty of Parliament Scottish, 289
Parliament Acts, 48, 5 1 56, 62, 70,71,
, women, 288
81,82, 86 -7, 89, 90, 06, 221 224,
l , see also H ouse of Lords ;
Prime
225, 238, 254, 272, 287, 295-8 Minister
Parliamentary Commissioner for Pensions appeal tribunals, 522, 534
Administration, 1 47 a., 166-7, 177, Performing Right Tribunal, 535
1 84, 1 85, 230, 264, 282, 307, 377, ‘Person aggrieved’, 546,535-4 5R8
384,468, 537, 547, 617-23 Petitions of right, 1 19, 598
Crown privilege and, 61 Planning appeals, 181, 184, 186,521,
maladministration, 61 8-20 528,538,542-6,557,580
min isterial responsi bility, 1 66-7, 62 1 583-4
decisions, validity of,
623 Plant Variety Rights Tribunal, 535

Index 723
 , ;

Police, 370-78 Post Office, 206, 210, 214, 21 8, 457#!.,

amalgamations, 374, 375, 376, 527 483,604
arrest, powers see Arrest limited civil liability, 604-5
central responsibilities for, 366, 372, Prerogative, royal, 32-3, 40, 50, 113-36
373-4, 375-6, 399 administration ofjustice, 113-15, 123,
chief constable, status and functions, 643
372,374-5,376,377,567 angary, 131k., 504
complaints against, 376-8 annexation, 124, 131
discipline, 374, 375, 378 armed forces see Armed forces,
entry, powers of, 370,450, 459, 489-90 disposition, pay and pensions
false reports to, 37 1 , 449 courts and, 40, 69-70, 113-14, 117-18,
interrogation, 371 , 376, 444, 450-52 122,315-16,550,577
local responsibilities for, 372, 373-4, disappearance, 1 1 5, 1 17, 1 18, 126
375,376 dispensing power, 69, 70
Metropolitan, 366, 373, 374 emergency see Emergency
obstruction of see Obstructing a external relations, 69, 1 14-15, 124-36
constable history of, 69-70
political activities, 245 immunities, 109, 114, 120-24
prosecutors, as, 345, 370-71 , 372, 375, inseparable, 70

517 legislation by, 40, 69, 71 , 1 1 3, 122, 123,

race relations, 376,432 134-6, 138-9, 187, 321, 637, 643

search and seizure, 370, 458-60, 483 proprietary and fiscal rights, 1 12, 1 14,
special protection, charges for, 121-2, 123-4
protection, 43-6, 1 14, 118-19, 121-2,
371/2.
torts, liability for, 370, 372, 444, 452,
130-36,423 -6
603 residual, 114, 124-5,316

see also Processions ; Public order statute and, 1 17-1 8, 1 19-21 , 505,

Political asylum, 41 5, 419-20, 429,

603-4
431 suspending power, 69-70
Political parties, 91 , 144, 147, 1 54, see also Act of State; Conventions of
4
Crown King can
the constitution ;
167-8, 228, 230, 231 , 239, 241
246-9, 257-9, 260, 263, 385, 568/2. do no wrong’ Monarch
;

Presidential regimes, 19, 23, 29

ballot papers and, 240
broadcasts, 23 1 , 250 Press Council, 475
Press, freedom of, 462, 463-4, 474-5
candidates, parliamentary, selection,
246-9 Press libels, 462, 474
see also Censorship ; Defamation;
choice of leader, 147, 257-8
Privacy
development, 144,163
Pressure groups, 92, 146, 160, 178, 184,
grants from public funds, 257n. t 258k.
228, 248, 260,263-4, 265, 266, 309,
lay magistracy and, 355-6
government in, 385 616
local
Presumptions of legislative intent,
parliamentary, 228, 257-9
common-law, 41/2., 71/i., 130,274k.,
Whips, 257-9
288k., 339-40, 553, 554, 559-60, 595
‘Political questions’, 130, 577
Preventive detention, 132, 193, 310,339,
Political uniforms, 498
417, 452, 454, 456, 462, 505, 632
Poor Law Commissioners, 324

724 Index
 ;

207, 208, oath, 138

Prices and incomes policies,
Processions
400
legality, 488, 489,
490-91,492, 493-5
144-60 ,
Prime Minister, 21 44, 58, 59,
,

police regulation, 490-91

493 ,

164,165,229
149-51 Procurement Executive, 197
appointment, 56-8, 60, 101, 555,
Prohibition, order of, 200, 549,
Cabinet Office, 153, 157-8 584,585,557-9,607
civil service duties, 149, 187 240-41
148, 149,. Proportional representation,
First Lord of the Treasury,
Prosecution
179 367, 368,
145-6, discretion to abstain from,
monarch and, 99-100, 101, 107, 370-71,517
155 370-71, 372,
44-6 police as prosecutors,
origins of office, 1

157, 258 375,517

party leader, 1 50-51 , 1 54, process,
political independence of
patronage, 155
368,373
peeras, 56-7, 60,148-9,151
14S-t>u private, 355, 368, 370
Prime Ministerial government,
public, 345, 367-8
Private Office, 1 59 Director
see also Attorney-General ;
removal, 50, 101-2, 145 Police
149-50, of Public Prosecutions ;
resignation, effect of, 146, 43,
Protected states and protectorates,
167-8 134-6,
73-4, 124, 125, 128, 129, 132,
salary, 147, 148
407,408,642 „
statutory recognition, 147 43-6, 1 14,
of Protection, prerogative of,
also Cabinet ; Dissolution 118-19,122,130-35,423-6
Parliament; Ministerial Allegiance
also Act of State;
responsibility , 295, 329
Provisional orders, 263, 271
1 10
Prince of Wales, 97, 98«. , see also Bills _
Privacy, ‘right’ of,
456-60 .
42, 21
Public Accounts Committee,
/,
1 lo,
interception of communications, 279-80,284
525
140, 457, 463, 469, 483, 205-7, 209-18
Public corporations,
458-60, 482-3
search and seizure, when Crown servants, 120-21
obtained evidence,
use of improperly see also Nationalized
industries
457-8 Inquiries,
Bills
Public local inquiries see
Private Acts and Bills see public
Injunctions 470
see Buis
Public mischief, 371,
Private members’ bills 228, 231,26
46-7, 5°, 102, Public opinion, 26, 91 , 93,
Privy Council, 21 , 38, Public order
10, 1 12, 137-43 , 144, 152,
107, 109, 1 20 1,370, 445,
force for maintaining,
221,634 496-7,500-504
Cabinet and, 138, 144,152 offences against, 469-71
, 476-8, 484,
committees, 139-43, 634 .
490-98
J udicial ,
Judicial Committee see
0/1
484
para-military organizations,
Committee of the Privy Council responsibilities for maintaining,
371,
164,
Lord President, 138, 139, 140,
376,485,490-504
174,260-61 of, 467-
Public records, availability
membership, 137-8, 141 176/t., 177,366
Public Record Office,
Northern Ireland, 137, 630

Index 725
 ;

Quasi-judicial acts, 514, 523 Republicanism in the Commonwealth

Queen see Crown King can do no
;
‘
see Commonwealth
wrong Monarch’
;
Republic of Ireland see Ireland
Queen’s private estates, 112 Research Councils, 178
Queen’s private secretary, 1 07 Revolutions
Queen’s recommendation, for money American, 65, 66, 67
bills and resolutions, 224, 268/z. English, 24, 66, 67-8, 70
Questions, parliamentary, 164, 165, legal effects of, 64, 501-2
21 4, 21 6, 230, 255-6, 260, 281-3, Rhodesia, Southern, 642
305-6,333,359,376,615 citizenship laws, 406
Quorum passports of U.K. residents,
in House of Commons, 272 impounding of, 426
in House of Lords, 299 UDI and, 59, 67, 68, 74/2., 91, 142/2.,
in Privy Council, 141 286,326,656
Riot, 496-7, 499-501
Race Relations Board, 432, 433, 434 forcible suppression, 201 , 497
Race relations legislation, 431-6 Rout, 496
common law on racial discrimination, Royal assent see Bills
432-3 Royal family, 97, 98, 109-10, 1 12
constitutional guarantees, 431-2 Royal marriages, 97, 98, 109-10, 138
incitement to racial hatred, 432, 478 Royal prerogative see Prerogative,
Rates, local, 120, 390-91 , 393 royal
see also Valuation courts Royal style and titles see Bills
Reasons for decisions, duty to give, Monarch
183-4, 540,541-2, 552, 556-7, 579, Rule of law, 35, 163,322,511-12,530
582
Recognition by Crown, in external Sark, 636
relations, 128, 131 Scotland
Redress of grievances, 21 7-1 8, 230, administrative law remedies, 596
277, 282, 376-8, 537-8, 546-7, bills for, 268, 269, 271
614-23 Council on Tribunals, 537
Council on Tribunals and, 537-8, courts and law, 72, 300, 356/2., 364, 628
546-7 devolution, administrative, 204, 628
Parliamentary Commissioner for Established Church, 72, 86, 108, 1 1 1,

Administration and, 61 7-23 628

Referendum, 17, 20, 60/2., 87, 90, 93 estimates, 278, 628/2.
Regency, 86,110-11 House of Commons committees, 268,
Regional bodies, 204-5, 20 6ru' 269,271,278,284,628
Relator actions, 592 Law Commission, 365/2.
Religion and conscience, freedom of, Law Officers, 152/z., 364, 370/2.
461,473-4 local government, 379, 628-9
Religious discrimination, 631 nationalized industries, 209-10, 629
Rent assessment committees, 529, 534, parliamentary representation, 235
563/2. peers, 289
Rent tribunals, 529, 532, 534, 535, 540, prosecutions, 370/2.
580 royal numeral, 99/2.

726 Index
 , 1

United States, 37
Secretary of State, 174, 364, 537
247 , 628 Serjeant at Arms see House of
separatism, 27, 240/7.,
Union with, 25, 39, 7 1—2, 1 37 628
,
Commons
Severance of void conditions, 551 , 614/7.
wrongful imprisonment, 456
Sex discrimination, 436-8
Search and seizure, 458-60, 483
Soldiers
general warrants, 458-9
civil liability, 199,200,201,202, 604
stop and search, 458
Crown, legal status
Security procedures, 191-4
-in relation to, 195-7, 199,601
civil service, 191-4
political restrictions, 198,245
‘D’ notices, 464, 473, 525
superior orders, 20 1 -2
government contractors, 194
see also Armed forces Martial law;
immigration appeals, 421 , 422
;

Public order
interception of communications, 460/7
Sovereign see Monarch
Security Commission, 192, 525
Sovereignty, concept of, 63-4, 80
Security Services, 197,366, 374/;., 457
Sovereignty of Parliament, 18, 25, 26,
Sedition, 304, 469-71 , 484, 490/2.
28, 32, 40, 47, 58-9, 63-93 , 632, 637,
Select committees of the House of
638-9,645,648
Commons, 1 85, 1 86/2. ,197, 230,
abdication from, 74-81
243«., 245, 255, 270, 283-5, 314,
Commonwealth and, 47, 49, 61,74,
525,615
90-91,646,649
270
bills for,
federalism and, 27, 33,74,76-7
committees of inquiry, 525
international law and, 70-7 1,130
Select Committee on Agriculture, 284
Ireland, 25-6, 28, 48-9, 58, 7 1 -2
Education and Science, 284
political limitations, 90-93, 153/7.
Estimates, 274, 279, 284
Scotland, 25, 39, 71-2
European Legislation, 273
territorial ambit, 70, 73-6, 9
Expenditure, 216, 279, 285 76-7
written constitution and, 28-9,
House of Commons Services, 284 Communities
see also European
Nationalized Industries, 215, ^16-17,
Speaker of the House of Commons
284
certificates under Parliament Acts,
Overseas Aid, 284
conclusiveness, 48, 86, 89, 295
Parliamentary Commissioner for
election, 226, 253
Administration, 186/7., 284-5, 618,
253-4,
functions, 227, 235, 249, 252,
619,621-2
261-2,280-81,304,314-15
Privileges, 284, 315-16
253
impartiality, 44, 51,54,
Procedure, 255, 284 335
Special procedure orders, 329,
Public Accounts, 42, 217, 279-80, 284
Sii Lanka see Ceylon
Race Relations and Immigration, 284
Star Chamber see Courts
Science and Technology, 284 543-4,
Statutory application to quash,
Scottish AfFairs, 284
549, 552, 557, 558,
580-8 1 , 583
Statutory Instruments, 284, 323,
locus standi, 546//., 583-4
Separation of powers, 22, 3 1 35-7, 1 44,
244,299/7., 320-21, 354-5
scope of review, 553, 557
time limit, 553, 558
Australia, 21-2, 38
Breach
Statutory duty, breach of, see
Ceylon (Sri Lanka), 38, 299/7. for
37 of statutory duty, liability
France, 17/7.,

Index 727
 . ; ; ;

Statutory instruments see also Expenditure; Taxation

defined, 139 Treaties, 71/:., 79, 115, 124, 125-7, 131,
SelectCommittees on, 284, 323, 335 132, 136, 635/:., 638
Strikes, 507 capacity to make, 79
Structure and local plans, 400, 545 extradition,427-8
examination in public, 545 implementation, 125-6
Subjudice issues, 165,283/:., 359, 361 laying before Parliament, 125
Succession to the throne see Crown legislation by, 125-7
Supplementary Benefits Commission, see also European Communities
177,206,521,603 International law
appeals, 521 , 531-2, 534 Tribunals see Administrative tribunals
{and individual tribunals);
Taxation, 41,53, 69, 112, 224, 228, 266, '
Domestic tribunals
274-6, 328,334 Tribunals of Inquiry, judicial, 167,-
Finance Bill, 266, 269, 215-6 181 n., 282, 359, 367, 377, 476, 525,
provisional collection of taxes, 275, 616
330n. Trust territory, 642
see also Bills ; Budget ; Parliament
Acts; Treasury Ulster, 630
Telephone tapping see Interception of Ultra vires doctrine
communications administrative action, 550-59
Territorial waters, 118, 122, 126, 139, local authorities, 392, 395-6, 550-51
321 subjective formulation of powers, 327,
Theatres, 264, 466, 477, 479 338, 339—40, 554
Three Advisers, 192-4, 422 subordinate legislation, 235-6, 327,
Town and country planning see 336,337-41
Enforcement notices Inquiries
; see also Abuse of discretion;
Inspectors New towns Planning
; ; Directory provisions ; Estoppel
appeals. Structure and local plans Jurisdictional defects; Mandatory
Transport licensing tribunals, 535, provisions
573-4 United Kingdom, meaning, 627, 630,
Transport Tribunal, 522, 535 634
Treason, 43, 73/:., 109,242,405/:., 423, United States
462«.,469, 500 Cabinet, 29, 36
aliens, by, 405/t. ,416-17, 424 Congress, 29, 34, 36-7, 270, 276, 31 In.
Corilmonwealth citizens, 425, 469 constitutional amendment, 37
treason felony, 109, 462/:., 469, 500 constitutional guarantees see Bills of
see also Allegiance; Protection rights
Treasure trove, 111, 526 criminal procedure, 450-51
Treasury delegation, unconstitutional, 326-7
Chancellor of the Exchequer, 148, 152, dependent territories, 326-7
161,166,174,179,273 due process of law, 16,450
First Lord, 148, 149, 179 equal protection of the laws, 16,
functions, general, 273-4 234-5,432-3
local government, 273, 399 freedom of speech, 16
nationalized industries, 211, 274 Judiciary, 34,37

728 Index
 Presidential powers, 29, 36-7, 159 Vote on account, ill
regulatory agencies, 209
Universities, central scrutiny of, 1 31 Wales
140,178,280,284 administrative devolution, 204, 627-8
see also Natural justice bills, 269, 627
University Grants Committee, 178 church, 243, 296
Unlawful assembly, 49 1 -7 Grand Committee, 269«., 627
Unreasonableness, 339, 41 8, 488, integration with England, 223 , 627
‘

550-52,605-6,620 language, 628

by-laws, void for manifest, 340, 486, local government, 381
581 parliamentary representation, 235
statutory instruments, whether test Prince of, 97, 110
applicable, 341 separatism, 27, 240/z., 247, 628
tort liability and, 580, 605-6 War
unfair discrimination and, 487 n. t 553 prerogative and, 113, 114, 116, 129,
see also Abuse of discretion; 130,132,136,504-5
Irrelevant considerations state of, 129,503
see also Aliens ; Emergency ; Martial
Valuation courts, 391 , 529, 533 law
Value added tax, 79/i.,274, 275, 533, Western Samoa, 98 n., 641 653
,

638 Workmen’s Compensation Acts, 533

Visiting forces, 203, 417, 422 n. Works of authority, 44

Index 729
More About Penguins
and Pelicans

Penguinewst which appears every month, contains details of

allthe new books issued by Penguins as they are published.
From time to time it is supplemented by Penguins in Print,
which is our complete list of almost 5,000 titles.

A specimen copy of Pengiiinews will

be sent to you free on
Dept EP, Penguin Books Ltd,
request. Please write to
Harmondsworth, Middlesex, for your copy.

In theUS. A.: For a complete list of books available from

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Books, 625 Madison Avenue, New York, New York 10022.

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Penguins in Canada write to Penguin Books Canada Ltd,

2801 John Street, Markham, Ontario L3R 1B4.
Economics

Money
Whence It Came, Where It Went
J, K. Galbraith

‘John Kenneth Galbraith has done it again . . . the book is an

ingenious blend of a history of money’ and monetary institutions,
with an analysis of money’s changing role in the sum total of
economic analysis and policy.

‘Ican think of no single book on this subject that would give so

immediate and so penetrating an insight into a subject which is not
only naturally difficult, but which has also been unnecessarily
complicated by the “experts”. That it is written with Professor
Galbraith’s usual wit and elegance does not need to be said. Parts
of it are a sheer joy to read and are, in their vivacity and elan,
highly reminiscent of, certainly his most delightful book. The Great
Crash 1929 ’ - Eric Roll in The Times Literary Supplement

‘Once again Professor Galbraith has written something noteworthy,

and written it elegantly’ - Woodrow Wyatt in the Sunday Times

Inflation
A Guide to the Crisis in Economics
J. A. Trevithick

Inflation, accompanied by economic disarray and popular despair,

coiistitutes a major challenge to the credibility of economic science.
Explanations and panaceas are vaunted, as various as they are
incomprehensible, but currency nonetheless continues to lose value.

Now, in Dr Trevithick opens up the discussion

this Pelican Original,
to include everyone, blasting away the jargon with well-informed
clarity; The characters in the drama include Milton Friedman,
,

Keynes, Hayek and the Cambridge Economic Policy Group while

the plot encompasses the Phillips Curve, Trade Union Power,
‘Helicopter Money’, floating currencies, incomes policy and
indexation.

Theories differ - and not along the traditional political lines of left

or right - but Dr Trevithick shows that it is possible to control

inflation, and that no one measure is enough. A combination of
treatments is required, based on a full understanding of the nature

of the disease.
Political Science

Democracy and Participation

J. R. Lucas

In February 1974 the Labour Party took office with less votes than
the Conservative Party; the Liberal Party, with a fifth of the poll,
returned only fourteen members. It is anomalies such as these that

provoke debate on the nature of our Democracy - a system of

government which, in Mr Lucas’s view, is not just a matter of votes
but also of the way decisions are taken.

Mr Lucas here examines the theoretical basis of Democracy,

contrasting the ideas of Locke and Rousseau and showing that the
concepts of Liberty, Justice and Democracy are intimately linked.
He follows this with an analysis of political decision-making in
Britain, maintaining that we live in an ‘elective autocracy’, with
little or no participation by the people in the business of government.

If we are to have a society, he warns, in which people do not feel

alienated, there must be more opportunity for participation so that
decisions taken by public authorities are decisions which people can
regard as their own.

How Conservatives Think

Edited and Introduced by Philip W* Buck

From the seventeenth century onwards the Conservative Party has

evolved as the political champion of the mixed, balanced
constitution, of religion, of the aristocracy, of personal rights and of
gradual change.

Philip Buck has compiled in this anthology a selection of writings

and speeches from outstanding Conservatives who have helped to
define and nurture these doctrines. They include Lord Halifax,
Edmund Burke, Robert Peel, Benjamin Disraeli, Winston Churchill
and Quintin Hogg. Together they offer an excellent guide to the
development of Conservative ideology and its manifestation today.
Some Bodks of Topical Interest in Penguins

Energy

Experts were already expressing concern about our rapidly

dwindling supplies of energy when the ‘Oil Crisis ’ struck, bringing
to everyone’s notice the fact that resources are not limitless; and
that unless we learn to live with this, disaster will befall us.

The Energy Question

Gerald Foley with Charlotte Nassim

‘A very solid guide to the availability and use of energy’ - The

Times Educational Supplement

‘This is a good book . compelling reading. I hope the hook is

. .

circulating inside the Department of Eneigy, where the policies are

devised. I think it can help’ - Ecologist

Nuclear Power
Walter C
. Patterson

‘This book provides an important synthesis of the technical and

political issues. It is excellent value and deserves wide readership’ -
New Scientist

‘In a single paperback all the basic technical information needed

for a real debate’ - Guardian

Oil and World Power

Background to the Oil Crisis
Peter R. Odell

A searching look at the leviathans of the business world from a

global viewpoint, showing up the effects of oil production and
consumption on politics and societies across the world*
 Law and Government

The Idea of Law

Dennis Lloyd

Id a work of impressive range and authority Lord JdQ^d shows how

law fits in with man’s conception of his relation’ both' to his own
society and to the world at large. The titles of the chapters open up
the great areas of thought and action which are the law’s concern -
Law and Force; Law and Morals; Law and Justice; Law and
Freedom; Law, Sovereignty, and the State.

Thfc book moves from a survey of what different societies have

thought and now think about the role of law to a study of the
interaction of legaland social concepts, and concludes with an
* important final chapter on some of the more pressing problems
which the Idea of Law may have to tackle in the immediate future.

Comparative Government
S: E. Finer

Comparative Government was written by the Professor of Government

at Manchester as a systematic exposition for both students and
general readers. In it he identifies five principal types of government
1

and examines many different styles of politics and rule.

*A considerable tour de force .Few teachers of politics in Britain

. .

would fail to learn a great deal from it. And it will make an
excellent textbook. It contains a large element of theory, at exactly
the right level for undergraduate students. Its scope is not confined
to “the great powers”. written in vivid, personal English.
It is

Above all, it is the work of a great teacher who breathes into every
- page his own enthusiasm for the discipline* - Anthony King in
New Society