PAGE 2-HONGKONG DAILY PRESS
THURSDAY, JAN. 23, 194F
have put upon them when used in I have considered as carefully as plaintiff is Chester v. Bateson 1920, be slow to hold that Parliament the second. I think the tribunal I can all the reported cases 1 K.B. 29. The regulation in aver conferred such a power unless whose duty it is to interpret: a which Defence of the Realm Regu-question in that case provided that it expressed it in the clearest pos- statute of the one class or the lations of Defence Regulations "no person shall without the con-sible language, and I should never other should endeavour to find out have been challenged as ultra vires, sent of the Minister of Munftions hold that it was given indirectly what, according to the well-known from in the matter of a Petition take any proceeding for the pur-by ambiguous regulations made in rules and principles of construc- of Right (1915) 3 KB 649 to EH.pose of obtaining an order or de- pursuance at any Act. tion, the statute means, and if the James. Machine Tools Limited v. cree for the recovery of possession Chester v. Bateson was décided Mulrsmithy (Times of, or for the electment of a tea- In 1920, Inree years after the meaning be clear to apply it in Farrell and that sense. Should the statute be Newspaper 3rd August, 1940) and ant of, any dwelling house in a House of Lords had adjudicated in examination certain special area' and in which Rev. Halliday. That decision. ambiguous, equally susceptible of from that
munition worker is Eving."-
On was binding two meanings, one leading to an principles clearly appeat.
the Divisional invasion of the liberty of the sub- There is a presumption in favour The Judgments of the learned Court th 1920 and Chester' v. Bate- ject and the other not. It may well for reasonableness and honesty, and judges who constituted the Divi-son was decided solely on the loop. be that the latter should be pre-in this case the honesty of the Exe- sional Court have been so much hole left by Lord Atkinson in his ferred on the ground of the pre-jeative is not challenged. It must referred to in argument that I feel speech in Halliday's case. sumed intention of the legislature not, be assumed that the powers I must cite from them freely, Dar- not to interfere with it. That is a conferred upon the Executive by ling J. said: "It is objected that wholly different matter."
LIMITS ASSIGNED "What are the boundaries or
His Majesty in
In a later case tried in the same
Statute will be abused. I adopt in the regulation is bad because it year, Newcastle Breweries Ltd. v. Mr. d'Almada's second point its entirety the statement of Greer forbids any person," without the The King (1920) 1 KB. 854, it was necessarily involves a close exami-J (as he then was) in Hudson's Bay consent of the Minister of Man-held that a regulation which pur- ported to deprive persons whose nation of the authorities. It is not Co. v. MacLay (1920) 36 TLR. 489ttons, to take or cause to be taken
goods were requisitioned by the any proceedings to recover posses- surprising that in such a matter at 475 and 476.
sion of his own house, or to elect naval or military authorities of direct authority is not available.
a tenant from it, where the tenant their right to the fair market value Mr. Street in his. recent work on the Doctrine of Uitra Vires writes limits of this legislative territory is employed in certain work cond to a fudicial decision of the the King in nected with war material. I found amount, was ultra vires. Salter J. at page 445 "It will be presumed thus assigned to
In the course of his judgment said: the passage in that a statute is intended to be Counci? (1) They must continue my judgment on
cided that regulation 3 (a) (2) of not only constitutional but reason-only during the continuance of the Rex. v. Halliday where Lord Finlay Chester v. Bateson it was de- able. Statutes must be interpreted present war. (2) They must be says that Parliament may entrust
these Regulations is invalid. The so as not to lead to absurdity. An exercised, honestly with the Inten-great, powers to Ordinance providing that persons tion of securing the public safety Council, feeling certain that such Judgment in that case are, m sub- convicted outside a Colony could and defence of the realm (see Lord powers will be reasonably exercis-stance, applicable here. That wa be banished if they entered the Wrenbury in Rex v. Halliday 1917 ed; and, further, on these words sulation deprived a class of sub- jects, in certain circumstances, of Colony could not mean that per- A.C. 260). It is argued that there of Lord Atkinson in the same case the common law right óf access to sons domiciled in the Colony, and is a third limitation, namely that it by no means follows, however, convicted when temporarily out-the regulation must be reasonably that if on the face of a regulation the Courts. This Regulation takes side it, could be banished from capable of securing the public safe-it enjoined or required something away a right of access to a par-
to be done which could not in any ticular Court given their homes (Venter v. R. 1907 T.ty and the defence of the realm. S. 910), and a penalty prescribed There is considerable authority reasonable way aid in securing the terms by a recent statute."
That decision was not tested on for entering the Colony without a in decisions of Judges of this Divi-public safety and the defence of pass cannot be meant to apply to sion and the Court of Appeal that the realm it would not be ultra appeal but it was severely criti an inhabitant of the Colony who there may be such a limitation on vires and void. It is not necessary clsed by Greer J. in his judgment received a trekking licence to and the powers of the King in Council. to decide this precise point on the in Hudson's Bay Co. v. MacLay. a home elsewhere but is obliged to Lord Wrenbury, however, appears present occasion, but I desire to think the plaintiff's Counsel return. (R. v. Zibt 1928 E.DL. 246). to think that provided the honesty hold myself free to deal with it was quite right in regarding the decision in the Newcastle Brew- "Interesting and apposite as these of the authority to which the le- when it arises."
Here I think it does at last arise; eries Case as strongly in their gislative power is delegated is not cases at first sight seem to be I am challenged and the regulation is and I ask myself whether it is a favour. It is, however, a recent unable in the absence of reports of
necessáry, or even a reasonable,.j decision of a Judge of co-ordinate the cases and the text of the sta-poses of the Act, there is no other way to aid in securing the public jurisdiction and is as I under- ̈ tutes there under consideration, to
the stand, under appeal. II and invoke them in aid of Mr. d'Alma-mit on the power to issue regula safety and the defence of
realm to give power to a Minister so far as it involves the propost- da's submission, that regulation 3 cannot apply to persons domiciled in Hongkong but at most only to transients and immigrants,
.. REPORTED CASES
Two reported cases are to me of
fritended to be made for the pur-
tions under the Act.
The main
in
express
at
This view seems to agree with the to forbid any person to institute tion that the King in Council has passage from Lord Farker's judg- any proceedings to recover posses- not power to issue regulations rent in The Zamora (1916) 2 AC. sion of a house so long as a war which will enable the country to 77 at page 107.): "Those who are worker is living in it.
acquire its necessary stores responsiime for the national secur- question to be decided is whether less than current market prices. ity must be the sole judges of what the occupant is a workman 50 - I regret that. I find it impossible
ployed, and the regulation might to agree with the decision." the national security requires."
PECULIAR FACTS
- particular interest in considering
the present case as both of them As applied to the present case have been so framed as to make " concern Orders of a competent au- these words construed strictly, seem this, a good answer to the applica-
Chester v. Bateson is afted with thority prohibiting the plaintiff to mean that if the King in Coun- tion for possession, still leaving from entering or residing in a de-cil is entrusted with the duty of that question to be decided by a approval in Fowle v. Monsell 1921 But the regulation 90 L.J.K.B. 105 but it is clear fined area in Britain in which area making regulations for the nation-court of law,
al security, the Judges cannot enteras framed forbids the owner of the from the Judgments in that case lay his home and his business.
into the question whether the re- property access to all legal tri-that the decision in Chester's case They are Rex v. Denison ex parte Nagale (1916), 85 L.J.K.D. 1744, and gulations issued for that purpose bunals in regard to this matter was held to be justified only by have or have not any tendency to This might. of course, legally be the extreme and peculiar facts. Ronnfeldt v. Phillips and others
promote the public safety and de-done by act of Parliament; but I of the case. It is referred to also (1918) 35 TLR. 46.
think this extreme disability canm Rex. v. fence of the realm.
| In neither of these cases was the
from them."
be.
of
Governor of Worm-
籍 case of
REASONABLENESS
I think, however, that is stating be inflicted only by direct enact-wood Scrubbs Prison: ex parte validity of the regulation under the powers granted to the King in ment of the Legislature itself, and Foy. (1920) 84 J.P. 94, which action purported to be taken Council rather more widely than that so grave an invasion of the the Internment of 2 British challenged. In the earlier case it the statute justifies. I do not think rights of all subjects was not in subject without trial after the was held that in the absence of that a regulation is valid merely tended by the Legislature to armistice but before the date evidence that the military author- because it is issued by the King order. It is to be observed that
accomplished by a departmental of the official termination of the Ity did not honestly suspect the Council as one of the regulations
war. There Avory J, said: “I wish person to whom the order
was under the Defence of the Realm this regulation not only deprives
only to add that Chester V. directed the court would not inter- Act, 1914. But I doubt whether the the subject of his ordinary right Bateson is an illustration of the fere to protect such person and further limitation is quite correct-to seek justice in the Courts that it could not enquire whethery stated in the form in which it Law, but provides that merely to way in which this Court jealously the ground upon which the mill was put in argument.
resort there without the permis- guards its power and authority to tary authorities suspected such In my
judgment a regulation slon of the Minister of Munitions interfere in any case in which the person were reasonable.
which, upon the face of it, could first had and obtained, shall of Executive has exceeded the powers on it by statute. Τα In the latter case Bankes L. J.not possibly aid in securing the
itself be a summary offence, and conferred
in that case said no doubt the appellant felt public safety or the defence of the so render the seeker after justice make the decision very acutely the position in which realm would be outside the legisla liable to imprisonment and ane. I analogous to the present, it would he had teen placed by the order, tive territory assigned by the Act allow that in stress of war we may have to be said that the regulation question forbade It was not difficult to wax eloquent to the King in Council. Lord At-rightly be obliged, as we should be which is now about the hardships suffered by a kinson in Rex v. Halliday suggests, ready, to forego much of our Ilber- any person to apply to this court writ of habeas corpus, man who had been prevented for without deciding, some such limity, but I hold that this elemental for a all this time from entering the lotation. He says at page 272 "Two right of the subjects of the British whereas it does nothing of the cality where his business was, but conditions are, however, "imposed. Crown cannot be thus easly taken kind. these were not ordinary times. In First, régulations can only be is- a time of grave national peril it sued during the war and, second,
ORIGINAL PURPOSE
The task before me can be very was necessary that the competent | whatever they purport to do must
Avory J. puts the position thus: shortly stated in the words of military authorities should be be done for the purpose of secur- The purpose in view when the Atkin J. in Lipton v. Ford, 1917 clothed with wide powers" to acting the public safety and the de-regulation was made, namely, to 2 KB, 647. "All that I have to" Honest mistakes might easily be fence of the realm. It by no prevent the disturbance of muni- see is whether the regulation made and if they were honestly means follows, however, that if on Ition workers in their dwellings, is one that is reasonably capable made the consequences must be the face of a regulation it enjoined may, without doubt, be said to be of being a regulation for securing bome as one of the consequences or required something to be done reasonable; and a regulation de-the public safety and the de.^ of a lamentable war, and Berutton which could not in any reasonable signed to prevent such distur fence of the realm. If it is I do L. J. characteristically sald the way aid in securing the public bance, providing that no order for not think the Court." is entitled courts were always anxious to pro-safety and the defence of the ejectment should be made except to question the discretion or the tect the liberty of the subject. They realm it would not be ultra vires under conditions prescribed, would Exectitive to whom Parliament did so both in the interests of the and vold. It is not necessary to probably be held to be intra vires bas entrusted powers in such subject and in the interests of the decide this precise point on
the the statute;
but the objection wide terms,"" State.
In time of war there must present occasion.”
which is made to the regulation! To that question, giving the be some modifications in the inter- LIMITATION OF PUWERS as it stands is that it deprives the words of the Regulations their ests of the State. It had been said In my judgment some such King's subjects of their right of plain and ordinary meaning, and that a war could not be conducted imitation of the powers as sug- access to the Courts of Justice and having due regard to the term of on the principles of the Sermon ongested by Lord Atkinson does pro-renders them liable to punishment the affidavit of Mr. N. L. Smith, the Mount. It might also be said perly arise out of the description if they have the temerity to ask there can in my judgment be only that a war could not be carried on of the delegated powers as powers for justice in any of the King's according to the principles of to make regulations for securing Courts. In my
one answer. The Defence (Entry opinion there is Magna Carta.
Restrictions) Regulations, 1940, the public safety and the defence not to be found in the statute Very wide powers had been given of the realm. If a regulation is anything to authorise or instify are in my opinion not ultra vires, to the Executive to act on suspicion such that. It cannot, on the face of regulation having that result; and and this action therefore fails. in matters affecting the interests it, conceivably aid in securing the nothing less than express words in There must be judgment for of the State. The responsibility safety of the public and the de- the statute taking away the right the defendants, and the interim for giving these powers rested not fence of the realm, it is not, in my of the King's subject of access to injunction granted by me on 13th with the Judges but with the ze- opinion, within the legislative the Courts of Justice would auth- December and extended
January until the trial- of the presentatives of the people in Par-powers which are conferred during orise or justify it. lament. The power was given not the war on His Majesty in Coun-- Sankey J. said: It is true that action is discharged.
In view of the conclusion to to the Judges but to the naval and cil. The third limitation may be the power to make a regulation to military authorities and it was stated AR follows: Regulations prevent the successful prosecution which I have come I must make upon them and not upon the which, on the face of them, show of the war being endangered is of an order for costs, but, following Judges that the responsibility for that they cannot afford any assis- a wide and sweeping" character, McCardie J. in Shutler v. Rolfe, the exercise of that power rested. tance. In securing the public safety but I decline to hold that Parila (1920) 38 TLR, 828, I desire to Looking at the words of the regu-and. the defence of the realm are ment intended. by these general say that in view of the great lation it was plain that the auth-not within the powers conferred words to give to the Executive the public importance of these pro orities had very-wide power, and by the legislature on the King in right to close any of the King's ceedings, their importance both he protested against the Judges Counci
Courts agafast his subjects unless to the subject and to the State, being called upon to say how the The real foundation of Mr. d'AI- they obtained the sanction of I think that the Orown ought not
mada's argument on behalf of the Minister to resort thereto. I should to enforce the costs.
war should be carried on.
on 8th.