A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words ‘it shall be lawful’ merely conferred a power, not a duty.
Lord Cairns said: ‘But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person on whom the power is reposed, to exercise that power when called upon to do so.’ and the cases decided ‘that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.’
Lord Penzance said that the true question was whether regard being had to the person enabled, to the subject matter, to the general objects of the statute and to the person or class of persons for whose benefit the power was intended to be conferred, the words do or do not create a duty.
Lord Selborne said that the question was whether it could be shown from any particular words in the Act or from the general scope and objects of the statute that there was a duty.
Lord Blackburn said: ‘though giving a power is prima facie merely enabling the donee to act, and so may not inaccurately be said to be equivalent to saying he may act, yet if the object of giving the power is to enable the donee to effectuate a right, then it is the duty of the donee of the power to exercise the power when those who have the right call upon him so to do. And this is equally the case where the power is given by the word ‘may’, if the object be clear.’
Lord Selborne, Lord Penzance
[1880] UKHL 1, (1880) 5 AC 214, [1874-80] All ER 43, 42 LT 546, 49 LJQB 577
Bailii
England and Wales
Cited by:
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Day v Haine and Another ChD 19-Oct-2007
The liquidator sought directions from the court after former employees of the company submitted proofs of debt in respect of protective awards made for the company’s failure to consult on their redundancy before going into liquidation.
Held: . .
Cited – Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
Cited – RM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .
Cited – Ogundimu (Article 8 – New Rules) Nigeria UTIAC 8-Feb-2013
UTIAC 1 The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of . .
Cited – MF (Article 8 – New Rules) Nigeria UTIAC 31-Oct-2012
UTIAC Prior to the new immigration rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against . .
Lists of cited by and citing cases may be incomplete.
Administrative, Ecclesiastical
Leading Case
Updated: 11 November 2021; Ref: scu.263823
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