Rage 2
THE CHINA MAIL, JANUARY 21, 1941
MAGNA CARATA HAS NOT REMAINED UNTOUCHED
(Continued from Page 1)
ous attention.“
ler."
of
may
it.
The plaintiff took out her writ That is a wholly two days later
Mr. d'Almada's argument for the plaintiff falls conveniently under Doctrine Of Ultra Vires
two heads:
One, sa radical, so drastie 211 Mr. D'Almada's invasion of the liberties of the subject cannot be justified unless the statute by virtue of which ar tion purports to be taken au- thorises sich an aston in the clear- est and mord
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Sankey J adds: It is true that the power to make a regulation to
prevent the successfui prosecu- tion of the war being endangered is of a wide and sweeping char- acter, but I decline to hold that Parliament intended by these gen- eral words to give the Executive the right to close any of the King's Courts against his subjects unless they obtained the sanction of Ministers to resort thereto. should be slow to hold that Parys
such 2 lament ever conferred power unless it expressed it in the clearest possible language and
I
I should never hold that it was given indirectly by ambiguous re- gulations made in pursuance of any Act.
Chester v Bateson
was
decided
in 1920. three years After the House of Lords had adjudicated in Rex. v. Halliday. That deci- sion was binding on the Division. al Court in 1920 and Chester v. Bateson was decided solely on the Iron-hole left by Lord Atkinson in his speech in Halliday's case.
In a later case tried in the
in the interest brithe *In
some such signed to prevent such disturbance, Boaler 1915,1 K.B. 21, Seutton J. | fications
[my judgment, (as he then was) said: "It is of Strite. It had been said that a fintitation of the powers as sug-providing that no, order for eject- be: I received the following let-course quite competent to Parlin-war could not be conducted on the gested by Lord Atkinson does pro- ment should be made except un- ter from the Colonint Secretary, ment to deprive any subject of the principles of the Sermon on the petly arise out of the description der conditions prescribed, would It might also be "Bald of the delegated powers as pow-probably be held to be intra "Madam, I am directed to in- King of any right either absolute-Mount. vite your attention to yourly or in part, But the language that a war could not be carried on ers to make regulations for sc- viras. the statute; but the objection failure to comply with the con- of any such statute should be according to the principles of the curing the public safety and the which is made to the regulation
defence of the realm.
as it stands is that it deprives ditions attached to your recent jealously watched by the courts Magna Carta. entry into the colony from Man-and should not be extended bei Very wide powers had been giv-
the King's subjects of their right Ima regulation Mạ such that of access to the Courts of Just ce ila. As you know, this condt-yond its least onerous meaning en to the Exécutive to act on sus
topicion in matters affecting the in-
It cannot, on the face tion was that you should leave unless clear words are used
of it, and renders them liable to punith- ¿conceivablyî ald' in securing the ment if they have the temerity the Colony by the 30th Novem-justify such extension." And interests of the State. The respon
forgiving these powers safety of the public; and the to ask for justice in any of the her last, and you and your hus-ex parte Zadig R. V. Halliday, sibility
bú! defence of the realm, it is not, King's Courts.
In my Opinion band entered into a bond to se- (1917) A.C. 200 Lord Atkinson in rested not with the Judges
within cure the performance of
my opinion,
the there is not to be found in the that his speech at page 274 said "For With the representatives of "the
which are legielative powers
statute anything to authorise condition. As you are still in myself must say that I never people in Parliament, The power
conferred during the war the Colony and have therefore could appreciate the contention was given not to the Judges but
justify a regulation having that not complied with the condition that statutes invading the liberty to the naval afid military authori,
His Majesty in Council.
result, and nothing less than ex-
The above referred to I am to point of the subject should be construed ties and upon then the responsi-
third limitation may be press words in the s atute taking that ut that you have thereby con-after one manner and statutes nut bility for the exercise of
Regulations away the right of the King', sub- travened regulation 3 of the De- invading it after another; that power rested. Looking at the stated as follows:
of the regulation, it was which, on the face of them, showjects of access to the Court:
Justice would authorise or justify fence (Entry Restrictions) Re- certain words should in the first words gulations, 1940. published as class have a meaning put upon plain that the authorities had very that they cannot afford any as-
the public it. in securing protested sistance Government Notification. No. them different from what the same wide power,
and the defence of the 1268 in the Gazette Extraordin- words would have put upon them against the Judges being called safety ary of November 19th, 1940, when used in the second. I think upon to say how the war should realm are not within the powers conferred by the legislators on the I am new to inform you that the tribunal whose duty it is to be carried on. enquiry is being made as to interpret a statute of the one class I have considered as carefully King in Council."
The real
Mr. foundation of endeavour as I can all the reported cases in when shipping
other should accommodation or the will be first available to enable to
argument on behalf find out what, according which "Defence of the Realm Re-d'Almada's
is Chester the plaintiff you to leave for Manila, and to
and gulations or Defence Regulations of the well-known rules
challenged as ultraBateson 1920 1 K.B. 829. The that the Police will be directed and principles of construction, the have been
in question in that in accordance with the provi- statute means, and if the mean- vires, from in the matter of a Pe-regulation
that "no person sions of regulation € (b) ing be clear to apply it in that tition of Right (1915) 3 K.B. 649 case provided
Tools shall without the consent of the to take you into custody shortly sense. Should the statute be an- to E. H. Jones Machine
take y hefore the ship sails and to ar-
Limited v Farrell and Muirsmith Minister of Muntions biguous, equally susceptible
for the purpose of range for your departure on it. two meanings, one leading to an (Times Newspaper 3rd August, proceeding
I trust that it will be clearly invasion of the liberty of the sub- 1940) and from that examination obtaining an order or decree for understood that the action referred | feet and the other not, it
certain principles clearly appear. the recovery of possession of
There is a presumption in fav-
for the ejectment of a tenant of, to above is not to be taken as a well be that the latter should be
the our of reasonableness and hones-any dwelling house in a speciau mere threat but that you will preferred on the ground of give this matter your most seri-presumed intention of the legis-y, and in this case the honesty of area and in which
the Executive is not challenged. It worker is living." lature not to interfere with
be assumed that the The Judgments of the learned different mat- must not
powers conferred upon the Exe-judges who constituted the Divi- cutive by Statute will be abused. | sional Court have been so much I adopt in its entirey the statement referred to in argument that I of Greer J. (as he then was) in
feel I must cite from them freely. Hudson's Bay co. v MeLay (1920) Darling J. said "It is objected second point | 36 T.L.R. 460 at 475 and 476. that the regulation is bad because necessarily involves a close ex- "What are the boundaries or it forbids any persons, without amination of the authorities, It Bmits of this legislative territory the consent of the Minister of is not surprising that in such a
thus assigned to the King in Munitions, to take or cause to he matter dieet authority 1*. not | Commeil? (1) They must be exer-
taken any proceedings to recover available Mr. Street in his re-│eised honestly with the intention possession of his own house, o!!
some year. Newenstle Brewence vocal terme cent work on the Doctrine of securing the public safety and to eject a tent from it, Ltd. . The King (1920) 1 K B. No such regulation ha- ben made. Uten Vires writes at page 445 defence of the realm (see Lord the tenant is employed in certain | 854, it was held that a regulat on n England, and De
Cunneteri with food will be prestumed that a sti tite | Wrenbury in Rex, v Halliday 1917 | work
which purported to deprat pers view of Her Britsa povernment is int nded to be not only eur -|A_C_260). It is argued that there material. I found my judgment
sons whose gooth, were requiste fitutional but reasonable. Statutes is a third limitation namely that on the paene in Rex v. Hallidayton hy the Naval &r abhi ny cell when disen sauna compannst be interpreted so as not to the regulation must be reasonably wheja
Authorities of their sight to the MAX By Hour enervelinesst on the lead t, absurd ty. An Ordiname capable of securing the publ; Isomet 11 M entrust great
fuir market value and to a judi- liberty of the subire, that it pe viding that
the defence of the powers to His Majesty in Council, el decision et the minuunt, eas persans convicte.if safety and Would be improper to makes any | Lutside a Colony could be bamshed realni.
i fucking vertain that such powers vitra vires. Salter J. JE 11: such ironis except by statute
There is considerable authority will be reasonably exercised; and, if they out red the Colony could
of this further on these words of Lord Chester v. Batesng it was decided course of his judgment said "in Į the regalatın, hver
decisions of Judges ay not mean that persons domiciled in validity they must be Jumled me in the Colony, and convicted when
Division and the Court of Appeal Atkinson in the same cases "it by their application to persons tem- ¦ temporarily outside it, could that there may be such a limita- no means follows, however, that that regulation 2 (n) (2) of these Regulations is invalid. The pntarily resident in Hong Kong, Fanished from their homes (Ven- tion on the powers of the King on the face of a regulation it
judgments in that case are, in and cannot apply to persons do-
1:3 1907 & T.S. 910), and a in Council. Lord Wrenbury, how- enjoined or required. something substance, applicable here. That miciled here who, as Hong Kong penalty prescribed for entering of ever, appears to think that pro-
Regulation deprived a class of is their home, are part of
the the Colony who received a trek-vided the honesty of the Authori- any reasonable way aid in secur- subjects, in certain circumstances, "realm" the protection of which king licence to find a home else- ty to which the legislative powering the public safety and the of the common law right of de is the declared object of the Act. where but is obliged to return, is delegated is not challenged and fence of the, renim it would not
cess to the Courts. This Regula- tion takes away a right of access The courts are ever rightly Jealous (R v Zibi 1928 E.D.L 246). In the regulation is intended to be he ultra of the liberty of the subject, and teresting and apposite as these made for the purposes of the Act,
to a particular Court given in will construe every sta'ute, and, cases at frst sight appear to be there is no other limit on the pow-
fortieri, subsidiary
That decision was not tested on legislation am unable, in the presence of er to issue regulations under the in favour of liberty, and-
reports of the cases, and the text| Act,
appeal but it was severely criti- Two, the regulations complain- of the statutes there under con.. This view seems to agree with
cised by Greer J, in his judgment in Hudson's Bay Co. v>Maclay: ed of cannot on any reasonable sideration, to invoke them in the the passage from Lord Parker's construction be held to be reason- aid of Mr. D'Aimada's submission judgment in The Zamora) 1916) 2 arise; and I ask myself whether I think the plaintiff's Counsel
it is a necessary, or even reason- ably necessary for any of
was quite right in regarding the the that regulation 3 cannot ap- A C. 77 at page 107): "Those who
able, way to uid. in securing purposes for which under the ply to persons domiciled in are responsible for the national the public safety and the de- decision in the Newcastle Brew- erleg Case as strongly in their Act, Defence Regulations may be Hong Kong but at most security must be the sole judges fence of the realm to give favour. It is, however, a recent only to transients and immigrants. of what the national security re-give power to ia ..Minister The
decision of a Judge of Co-ordin- authority for
Mr.
As applied to the pre-to forbid any person to institute ate jurisdiction and is, as I une Two reported cases are to me quires.” d'Almada's submission that the of particular interest. In consider- sent case these words construed any proceedings to recover pos- derstand, under appeal. If and so considered opinion of the Britishing the present case as both of strictly seem to mean that if the session of a house so long as a far as it involves the proposition. Government is that any serious them concern orders of a com- King in Council is entrusted with war worker is living in it. The that the King in Council has not invasion of the liberty of the sub-petent authority probibiting the the duty of making regulations for main question to be decided ispower to issue regulations which ject should be achieved by Act plaintiff from entering or residing the national security, the Judges whether the occupant is a work will enable the
country to ac- of Parliament and not by Defence in a defined area in Britain in cannot enter into the question man. so employed, and the regu-quire its necessary stores at less Regulations is to be found in which area lay his home and busi- whether the regulation issued folation might have been so frara-than current market prices,- Il re- the issue of the Solicitors' Journal ness. They are Rex v Denison ex that purpose have or have noted as to make this a good answergret that I find it impossible to for 3rd August, 1940: 484 Sol. J. parte Nagale (2006), 85 LIJK.D.
any tendency to promote the pub to the application for possession, agree with the decision.” 457.) "Replying to the debate the 1744, and Ronfeldt Phillips and
lie sufety and defence of the still-leaving that question to be Chester v. Bateson is cited with Lord Chancellor observed that,
others (1918) 35 TLR. 46.
realm. I think; however, that is decided by a court of law. But approval in Fowle v. Monsell strictly speaking, there was
In neither of these cases was stating the powers granted to the the regulation as framed forbids 1921 80 L.J.K.B. 105 ..but it need for the Government to in the validity of the regulation un-King in Council rather more wide- the owner of the property actess is clear from the Judgments in troduce the Bill, because they der which action purported to be ly than the statute justifies. to all legal tribunals in regard to that case that the decision in could do the whole thing: by Or- taken challenged. In the earlie" 1 do not think that a regulation is this matter. This might, of Chaster's-case was held tolbe, diers in Council under the Defence case it was held that in the ab- valid merely because it is issued course, legally be done by Act of justified only by the extreme-und Regulations, but the Government sence of evidence that the mili by the King in Council as one of Parliament; but I think this ex- peculiar facts of the case. took the view that, astary authority did not honestly the, regulations under the De- treme disability can
It is referred to also țin‹ Rex. v. be inflicted they were dealing with
the suspect the person to whom the fence of the Realm Act, 1914. But only by direct enactment of the Governor of Wormwood Scrubbs rights and liberties or ordinary order was directed the court could I doubt whether the further limi- Legislature tself, and that so grave Prison: ex parte Foy (1020) 84 citizens, it would be a monstrous not interfere to protect such per- tation is quite correctly stated in an invasion of the rights of all J.P. 94, a case of the internment "thing to use
that power without son, and it could not enquire whe- the form in which it was put in subjects was not intended by the of a British subject without trial bringing it before the attention of ther the ground on which-the-mi- argument. In my judgment a re- Legislature to be accomplished by after the armistice but before the "Parliament."
litary authorities suspected such gulation which, upon the face of departmental order. It is to be date of the official termination of On this citation I would only person were reasonable.
it, could not possibly aid in se observed that this regulation not the war. There Avery J. said: "I say that the considered opinion of In the latter case Bankes LJ curing the public safety or the de-only deprives the subject of his wish only to add that Chester v. His Majesty's Government on the said no doubt the appelant felt fence of the realm would be out-ordinary right to seek justice in Bateson is an illustration of the question then before the House of very acutely the position in which side the legislative territory as the Courts of Law, but provides, way in which this Court jealously Lords appears to differ radically he had been placed by the ordersigned by the Act to the King in that merely to resort there with guards its powes and authority to and irreconcilably from the opin-It was not difficult to wax elo- Council. Lord Atkinson in Rex out: the permission of the Minis-interfere in any case in which the ion that Government held at that quent about the hardships suffer v. Halliday suggests, without deter of Munitionis first had and Executive has exceeded the pow time about, evacuation in Honged by a man who had been pre Kong, as the andavit of Mr. N. vented for all this time from en ciding, some such limitation. He obtained shall of itself be a sumers conferred on it by statute. To
make the decision in the case tina-: L. Smith shows, but that is atering the locality where his busi-tays at page 272 Two conditions mary.offence.
are, however, imposed. First re- and so render the seeker after logous to the present, it would matter for the consideration of the ness was, but these were not or-gulations can only be issued dur-justice liable to imprisonment and have to be said that the regula- Executive Government of the Co-dinary times, In a time bf gravě Jony, and cannot have any bear national peril it was necessary that ing the war, and second, what fine. I allow that in stress of tion which is now. in question for- ing on the conclusions to which the competent military authorities over they purport to do must be war we may rightly be obliged, bide any person to apply to this. court of justice may come. It is should be clothed with wide powdone for the purpose of securing as we should be ready to forego court for a writ of Corpus, where interesting too to note that Lord ers to act. Honest mistakes might the public safety and the defence much of our liberty, but I hold as it does nothing of the kind.
The task before me can be ver Simon had no doubt in his own easily be made and if they were of the realm. It by no means fol-that this elemetital right of the mind about the competence of a honestly made the consequences lows, however, that if on the face sujects of the British Crown can shortly stated in the words of
fromskinin Lipton ver Defence. Regulation to achieve the minibe borne as one of the con- to a regulation it enjoined or ret not be thus exily taken
war, quired something to be done them.” catalog same end as the statute the House sequences of a lamentable was then debating. A
itton L. characteristical which could not in any beasonab and St As to what is the proper
The courts were always way.nid in securing the public. ty of and the defence of the realm it Both: In would not be ultra. "and in kit is not necesNTLEY
#
made.
no
it be some modi-irazion!”
to be done which could not in
vires and void. It is not necessary to decide this pre- cise point on the present occa- sion, but I desire to hold myself to deal with it when it
Here I think it does at last
irte
arises."
express terms by a recent statute "
Avery 3. puts, the position thus, da whether the regulation The purpose in view when the that is reasonably, capable regulation was made; namely, tolling,avini
bevant) the disturbance, nt uhunis Honzwertisers in their dwellings, i may, without #doubt be said to be ith
easonable; and "a"regulationïde-i