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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Constitutional - From: 1900 To: 1929

This page lists 49 cases, and was prepared on 20 May 2019.

 
London County Council v Attorney General [1901] AC 26
1901

Lord MacNaghten
Income Tax, Constitutional
Lord MacNaghten said: "Income tax, if I may be pardoned for saying so, is a tax on income. It is not meant to be a tax on anything else."
Lord Macnaghten said of a relator action: "The initiation of the litigation, and the determination of the question whether it is a proper case for the Attorney-General to proceed in, is a matter entirely beyond the jurisdiction of this or any other court. It is a question which the law of this country has made to reside exclusively in the Attorney-General"
1 Citers


 
Quinn v Leathem [1901] AC 495; [1901] UKHL 2
5 Aug 1901
HL
Lord Shand, Lord Macnaghten, Lord Lindley, Earl of Halsbury LC
Torts - Other, Contract, Constitutional
Quinn was treasurer of a Belfast butchers' association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union put pressure on Munce, a wholesale customer of Leathem, to stop buying his meat. It also called out Dickie, one of Leathem's employees. The jury found for Leathem, holding that there had been a malicious conspiracy between Quinn and other officers of the union. The Irish Court of Appeal affirmed this. Held: The appeal failed. A conspiracy 'wrongfully and maliciously' to induce customers and servants of the plaintiff not to deal with him was actionable on proof of damage. Though the coming together of a group of people is lawful, even though it results in injury to the interests of others, such an agreement for no purpose other than the pursuit of a malicious purpose to injure another would be unlawful. Any violation of legal rights, including rights under contract, committed knowingly and without justification, is a tortious act.
Lord MacNaghten said of Lumley v Gye: "I have no hesitation in saying that I think the decision was right, not on the ground of malicious intention - that was not, I think, the gist of the action - but on the ground that a violation of a legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference."
He explained the rationale of the tort as follows: "a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact-in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done."
Lord Lindley said that Lumley v Gye tort was an example of causing loss by unlawful means: "If the above reasoning is correct, Lumley v. Gye was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, or indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him." and
"a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact - in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified - the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done."
Lord Shand distinguished Allen v Flood: "As to the vital distinction between Allen v Flood and the present case, it may be stated in a single sentence. In Allen v Flood the purpose of the defendant was by the acts complained of to promote his own trade interest, which it was held he was entitled to do, although injurious to his competitors, whereas in the present case, while it is clear there was combination, the purpose of the defendants was 'to injure the plaintiff in his trade as distinguish from the intention of legitimately advancing their own interest.'"
Earl of Halsbury LC said: ". . a case is only an authority for what it actually decides."
1 Cites

1 Citers

[ Bailii ]
 
Report By Chairmen On Draft Provisional Orders Dealt With As Private Bills [1902] UKHL 868; 39 SLR 868
23 Jan 1902
HL

Constitutional

[ Bailii ]
 
Standing Order (New) [1902] UKHL 869; 39 SLR 869
28 Jan 1902
HL

Constitutional
Private Legislation Procedure - Standing Orders (New) - Deposit of Petitions for or against Draft Provisional Orders Dealt with by Bills.
[ Bailii ]
 
Rossi v Magistrates of Edinburgh (1904) 7 F (HL) 85
1904
HL

Licensing, Constitutional
Conditions in an ice-cream vendors' licence which restricted their right to open their shops when they liked and sell what they pleased were held to be ultra vires of the licensing authority. The court applied the rule that while the legislature may make whatever changes to the law that it likes, subordinate legislative authorities can make only such changes in the law as Parliament has empowered them to make.
It is a general rule of construction that, while the legislature may make whatever changes to the law that it likes, subordinate legislative authorities can make only such changes in the law as Parliament has empowered them to make.
1 Citers


 
The United States of America v Gaynor [1905] AC 128
1905
PC
Lord Halsbury L.C
Commonwealth, Constitutional, Extradition
The Privy Council allowed an appeal from an order of a Judge, itself having given special leave to appeal.
Lord Halsbury LC said: "Their Lordships do not mean to suggest that the writ of habeas corpus is not applicable when there is a preliminary proceeding. Each case must depend upon its own merits. But where a prisoner is brought before a competent tribunal, and is charged with an extradition offence and remanded for the express purpose of affording the prosecution the opportunity of bringing forward the evidence by which that accusation is to be supported; if, in such a case, upon a writ of habeas corpus, a learned Judge treats the remand warrant as a nullity, and proceeds to adjudicate upon the case as though the whole evidence were before him, it would paralyze the administration of justice and render it impossible for the proceedings in extradition to be effective."
1 Citers


 
Kinross [1905] UKHL 152; 43 SLR 152
4 Jul 1905
HL

Constitutional
(Committee for Privileges) A Peer may be heard as counsel on an appeal at the bar of the House of Lords, but this does not include his appearing before Committees of the House, or before the House when sitting under the presidency of the Lord High Steward on a criminal case.
[ Bailii ]
 
Mortensen v Peters (1906) 8 F (J) 93
1906

Lord Salvesen
Scotland, Constitutional, Agriculture
The Danish master of a Norwegian steam-trawler was prosecuted for using a particular method of fishing in the Moray Firth. He argued that, although the statute banning the method would have caught a British fisherman, it should be construed as impliedly excepting all foreigners fishing from foreign vessels outside the territorial jurisdiction of the British Crown. Held: The defence failed. Lord Salvesen said that it could scarcely be supposed that the British Parliament should pass legislation placing British fishermen under a disability which did not extend to foreigners: "I think, it was a just observation of the Solicitor General that, if legislation of this nature had been proposed, and the words inserted which the Dean of Faculty maintained were implied, it would never have been submitted by a responsible minister or have received the approval of Parliament."
1 Citers


 
Illinois Central Railroad Co v McKendree (1906) 203 US 514
1906

Day J
International, Constitutional
(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that the same line was fixed as to intrastate shipments by legislation of the state through which it passed. Day J said: "It is urged by the government that it was not the intention of the Secretary to make provision for intrastate commerce, as the recital of the order shows an intention to adopt the state line, when the state by its legislature has passed the necessary laws to enforce the same completely and strictly. But the order in terms applies alike to interstate and intrastate commerce. . . . We do not say that the state line might not be adopted in a proper case, in the exercise of federal authority, if limited in its effect to interstate commerce coming from below the line, but that is not the present order, and we must deal with it as we find it. Nor have we the power to so limit the Secretary's order as to make it apply only to interstate commerce, which it is urged is all that is here involved. For aught that appears upon the face of the order, the Secretary intended it to apply to all commerce, and whether he would have made such an order, if strictly limited to interstate commerce, we have no means of knowing. The order is in terms single, and indivisible."
1 Citers


 
Dodd v Dodd [1906] P 189
1906

Sir Gorell Barnes P
Constitutional, Family
Sir Gorell Barnes P set out the task of a judge saying that it is our task is jus dicere non jus dare - to state the law, not to make the law, but decried the state of family law: "That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted. The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects."
"The order does not state upon its face the finding of fact upon which the order was made - in other words, it does not state on the face of it that the respondent had been guilty of wilful neglect to provide reasonable maintenance for the petitioner and her child, and that by such neglect he had caused her to leave and live separately and apart from him. It might be said that I could therefore ignore the order and treat it as if it had never been applied for and made, on the general principle that a Magistrate's order ought to state the finding of fact essential to the exercise of the jurisdiction: see the observations in the case of Brown v. Brown (1898, 62 JP 711); but it is necessary to observe, first, that this point is highly technical, and, on an appeal to this Division, the defect could have been corrected, that the petitioner acted upon the order and endeavoured to enforce it, and that it was undoubtedly treated by both parties as being an effective order, and further, that in the case of Brown v. Brown the effect of the provisions of the Summary Jurisdiction Acts and of the forms which are provided for use under those Acts was not fully considered. According to s. 8 of the Act of 1895 all applications under it are to be made in accordance with the Summary Jurisdiction Acts, and, without going through the details of those Acts as they at present stand, it is sufficient to observe that the Summary Jurisdiction Rules J 886, r. 31, provided that the forms in the schedule thereto, or forms to the like effect, might be used with such variations as circumstances might require; and the forms of orders in that schedule omit to state whether the complaint is found and adjudged to be true: so that although in strictness the order ought to state the findings of fact essential to jurisdiction, having regard to the provisions of the Act and Rules to which I have just referred, I am not prepared to hold, without further argument, that this order ought to be treated as bad on the face of it. I might point out, however, that it is desirable that the practice adopted, I believe, by the Magistrates in London of stating that the cause of complaint is found to be true is desirable in order to avoid any such difficulty as arises in the present case upon this point . . "
1 Citers


 
The Employers' Liability Cases (1908) 207 US 463
1908

White J
International, Constitutional
(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was controversial. Held: (Majority) The statute was unconstitutional. White J said: "Of course, if it can be lawfully done, our duty is to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unambiguous, that it may be rewritten to accomplish that purpose. Equally clear is it, generally speaking, that where a statute contains provisions which are constitutional and ethers which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save the rule applies only where is is plain that Congress would have enacted the legislation with the unconsitutional provisions eliminated. All these principles are so clearly settled as not to be open to controversy. They were all, after a full review of the authorities, restated and reapplied in a recent case. Illinois Central Railroad v. McKendree, 203 U.S. 514, and authorities cited there."
1 Cites

1 Citers


 
Mangena v Edward Lloyd Ltd (1908) 98 LT 64; (1908) 24 TLR 610
1908

Darling J
Defamation, Constitutional
The plaintiff claimed in defamation after the defendant had republished an extract from a paper laid before parliament. Held: The 'blue book' reflected material laid before both houses of parliament, and reproduction of it was protected under the 1840 Act.
As to whether the paper had been printed by malice, Darling J referred to an earlier case where a plea of justification had been placed on the record but the defendant at the trial had offered no evidence in support of it. Darling J added: "A plea of justification ought never to be put on the record unless the person believes in it and is prepared to support it with evidence".
Parliamentary Privileges Act 1840 3
1 Citers



 
 Nairn v University of St Andrews; HL 10-Dec-1908 - [1909] AC 147; 1909 SC (HL) 10; [1908] UKHL 3; (1908) 16 SLT 619

 
 Rex v Earl of Crewe, Ex parte Sekgome; CA 1910 - [1910] 2 KB 576

 
 Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co; 1910 - (1910) 11 CLR 1
 
Earl of Lauderdale v Scrymgeour-Wedderburn [1910] UKHL 532; 47 SLR 532
7 Apr 1910
HL
Lord Chancellor (Loreburn), The Earl of Halsbury, Lord Atkinson, Lord Collins, and Lord Shaw
Wills and Probate, Constitutional
The office of Hereditary Standard Bearer of Scotland is held jure sanguinis, and cannot therefore be bought, sold, or adjudged. If the blood fails the grant is spent and the office becomes extinct.
The pursuer in an action of declarator of right to the office of Hereditary Standard Bearer of Scotland founded upon (1) a charter in his predecessor's favour granted by Charles II as ultimus haeres of John Scrymgeour Earl of Dundee, in whom the office had been vested, and (2) a decree of the Court of Session in 1671 in an action in which the defender's predecessor had been cited, declaring, inter alia, that the office belonged to his (the pursuer's) ancestor-the grantee of the charter referred to.
Held that, as the office in question was in its nature inalienable, the pursuer had acquired no title thereto.
[ Bailii ]
 
Walker Trustees v Lord Advocate and Others [1911] UKHL 73; 49 SLR 73
1 Dec 1911
HL
Lord Chancellor (Loreburn), Lord Atkinson, Lord Kinnear, and Lord Gorell
Constitutional
The Treaty of Union, article 20, enacts "That all heritable offices, superiorities, heritable jurisdictions, offices for life, and jurisdictions for life, be reserved to the owners thereof as rights of property, in the same manner as they are now enjoyed by the laws of Scotland notwithstanding this Treaty."
The Usher of the White Rod at the time of the Union was entitled to receive certain fees from the recipients of honours conferred by the King as Sovereign of Scotland, and could recover these fees from a Scotsman in whatever part of the King's dominions he, the grantee, might be in, and from an Englishman if he, the grantee, received the honour while in Scotland. From 1766 to 1904 the holders of the office claimed and received fees from the grantees of titles and dignities of the United Kingdom.
Held (rev. judgment of the Second Division) that although the effect might be to deprive the Usher of valuable emoluments, the terms of article 20 of the Treaty of Union were too unambiguous to be open to interpretation by any custom or practice which had grown up since, that by it the rights effeiring to the office of Usher were as before the Union, and consequently fees were only payable by a grantee of a Scottish honour or dignity, not by the grantees of honours or dignities of the United Kingdom.
Treaty of Union
[ Bailii ]
 
Leach v Rex [1912] AC 305
1912
HL

Constitutional, Crime
Save insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make alterations in the common law.
1 Citers


 
Bowles v Bank of England [1913] 1 Ch 57; [1913] 82 LJ Ch 124; [1913] 108 LT 95; [1913] 29 TLR 42; [1913] 57 Sol Jo 43; [1913] 6 Tax Cas 136
4 Nov 1912
KBD
Parker J
Constitutional, Income Tax
The House of Commons Ways and means committee resolved to assent to the imposition of income tax at the required rate for the next year. Held: Such a resolution was inadequate to authorise the Crown to levy the tax by its deduction from the Bank's dividends payable to its shareholders. Authority could be granted only by statute. Parker J said: " No practice or custom, however prolonged or however acquiesced in on the part of the subject could be relied on by the Crown as justifying an infringement of the provisions of the unrepealed Bill of Rights."
Bill of Rights 1689
1 Citers


 
Sir Stuart Samuel Member of Parliament (Reasons) v House of Parliament (House of Parliament) [1913] UKPC 21
11 Apr 1913
PC

Constitutional

[ Bailii ]

 
 Scott v Scott; HL 5-May-1913 - [1912] P 241; [1913] AC 417; 29 TLR 520; [1911-13] All ER 1; [1913] UKHL 2
 
G and C Kreglinger v The New Patagonian Meat and Cold Storage Company [1914] AC 25; [1913] UKHL 1
20 Nov 1913
HL
Viscount Haldane, Lord Parker
Constitutional, Contract, Equity
The appellant woolbrokers had lent the respondent £10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The company paid off the loan, but the appellants claimed that they were entitled to continue to exercise their right of first refusal. Held: The right of first refusal not part of the mortgage transaction; but was a collateral contract entered into as a condition of the company obtaining the loan. The appellants could therefore entitled to enforce it. Whilst courts are loathe to interfere with freedom of contract, they will intervene where evidence showed that terms imposed by a mortgagee are unconscientious. To do so, the courts will consider both the form and substance of the transaction.
Lord Parker of Waddington discussed the survival of the rule against a clog on an equity of redemption, saying that it was not objectionable for a mortgage to confer a collateral advantage upon a mortgagee: "The last of the usury laws was repealed in 1854, and thenceforward there was, in my opinion, no intelligent reason why mortgages to secure loans should be on any different footing from other mortgages. In particular, there was no reason why the old rule against a mortgagee being able to stipulate for a collateral advantage should be maintained in any form or with any modification. Borrowers of money were fully protected from oppression by the pains always taken by the Court of Chancery to see that the bargain between borrower and lender was not unconscionable. Unfortunately, at the time when the last of the usury laws was repealed, the origin of the rule appears to have been more or less forgotten, and the cases decided since such repeal exhibit an extraordinary diversity of judicial opinion on the subject. It is little wonder that, with the existence in the authorities of so many contradictory theories, persons desiring to repudiate a fair and reasonable bargain have attempted to obtain the assistance of the Court in that behalf. My Lords, to one who, like myself, has always admired the way in which the Court of Chancery succeeded in supplementing our common law system in accordance with the exigencies of a growing civilization, it is satisfactory to find, as I have found on analysing the cases in question, that no such attempt has yet been successful. In every case in which a stipulation by a mortgagee for a collateral advantage has, since the repeal of the usury laws, been held invalid, the stipulation has been open to objection, either (1) because it was unconscionable, or (2) because it was in the nature of a penal clause clogging the equity arising on failure to exercise a contractual right to redeem, or (3) because it was in the nature of a condition repugnant as well to the contractual as to the equitable right." and
"The nature of the equitable right [to redeem] is so well known that, upon a mortgage in the usual form to secure a money payment on a certain day, it must be taken to be a term of the real bargain between the parties that the property shall remain redeemable in equity after failure to exercise the contractual right. Any fetter or clog imposed by the instrument of mortgage on this equitable right may properly be regarded as a repugnant condition and as such invalid. There are, however, repugnant conditions which cannot be regarded as mere penalties intended to deter the exercise of the equitable right which arises when the time for the exercise of the contractual right has gone by, but which are repugnant to the contractual right itself. A condition to the effect that if the contractual right is not exercised by the time specified the mortgagee shall have the option of purchasing the mortgaged property may properly be regarded as a penal clause. It is repugnant only to the equity and not to the contractual right itself. But a condition that the mortgagee is to have such an option for a period which begins before the time for the exercise of the equitable right has arrived, or which reserves to the mortgagee any interest in the property after the exercise of the contractual right, is inconsistent not only with the equity but with the contractual right itself, and might, I think, be held invalid for repugnancy even in a Court of Law."
As to the doctrine of precedent: "To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. When a previous case has not laid down any principle, but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblances in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance." The evolving nature of the equitable jurisdiction is 'to mould the rules which they apply in accordance with the exigencies at the time'.
Lord Parker explained the decision in Bradley v Carritt: "The real question, in my opinion, was whether it [the clause in question] was inconsistent with or repugnant to the contractual right of the mortgagee [quaere, mortgagor] to have his property restored unfettered if he paid the money secured with interest as provided in the agreement, and the consequential equitable right to have the property so restored if he paid his money with interest and costs at any time. On this point there was room for a difference of opinion . . There is really no difficulty in the decision itself. It is merely to the effect that the case was within the principles of Noakes v Rice. Lords Macnaghten, Davey, and Robertson all thought that if the stipulations in question were binding after redemption the mortgagor would not get back his property intact; in other words, that the stipulation was repugnant both to the contractual right and the equity."
Lord Mersey agreeing, said that the equitable doctrine prohibiting the imposition of a clog on the mortgagor's right to redeem is "like an unruly dog, which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be".
Viscount Haldane, Lord Chancellor, said: "the other and wider principle remains unshaken, that it is the essence of a mortgage that in the eye of a Court of Equity it should be a mere security for money, and that no bargain can be validly made which will prevent the mortgagor from redeeming on payment of what is due, including principal, interest and costs. He may stipulate that he will not pay off his debt, and so redeem the mortgage, for a fixed period. But whenever the right to redeem arises out of the doctrine of equity, he is precluded from fettering it. This principle has become an integral part of our system of jurisprudence and must be faithfully adhered to."
The issue for decision was: "What was the true character of the transaction? Did the appellants make a bargain such that the right to redeem was cut down, or did they simply stipulate for a collateral undertaking, outside and clear of the mortgage, which would give them an exclusive option of purchase of the sheepskins of the respondents. The question is in my opinion not whether the two contracts were made at the same moment and evidenced by the same instrument, but whether they were in substance a single and undivided contract or two distinct contracts." The agreement for a right to purchase the respondent's sheepskins was a collateral bargain "the entering into which was a preliminary and separable condition of the loan".
1 Cites

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[ Bailii ]
 
In Re Boaler [1915] KB 21
1915
CA
Scrutton J
Litigation Practice, Constitutional
The court was asked whether the 1896 Act which permitted a court to make an order that a person could not institute proceedings without the leave of the court, applied to the institution of criminal proceedings. Held: It did not. Scrutton J said: "In the case of this statute the legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting part of the statute only, the presumption against the interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to the meaning which effects the least interference with those rights." but "The object of the court is, from the words used, construed in reference to the subject-matter in which they are used, to get at the intention of the legislature and give effect to it. When the legislature has used general words capable of a larger and a narrower meaning, those words may be restricted by innumerable presumptions all designed to give effect to the reasonable intent of the legislature."
"One of the valuable rights of every subject of the King is to appeal to the King in his Courts if he alleges that a civil wrong has been done to him, or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension."
Vexatious Actions Act 1896
1 Citers


 
The Zamora [1916] 2 AC 77
1916
PC
Lord Parker of Waddington
Evidence, Constitutional
Lord Parker said: "The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. It is true that, under a number of modern statutes, various branches of the Executive have power to make rules having the force of statutes, but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogaive involves any power to prescribe or alter the law administered in Courts of Common Law or Equity . . Those who are responsible for the national security must be the sole judge of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public."
1 Citers


 
Gairdner v Macarthur [1916] UKHL 297; 53 SLR 297
1 Mar 1916
HL
Lord Chancellor (Buckmaster), Lord Kinnear, Lord Atkinson, and Lord Shaw
Constitutional, Litigation Practice
The defender Captain A. J. Macarthur appealed to the House of Lords from an interlocutor of July 20, 1915, which, on the whole proof, recalled the Sheriffs' interlocutors, gave new findings in fact, and a finding in law that the defender was liable to the pursuer in the value of certain articles, with decree for pounds 150. The respondent objected to the competency of the appeal. In an appeal from the Sheriff Court the Court of Session allowed additional proof on the ground that the words "if necessary" in section 72 of the Court of Session Act 1868 meant "if necessary for the ends of justice."
Held that an appeal to the House of Lords, on facts set up after such additional proof, was incompetent, being excluded by 6 Geo. IV, cap. 120, sec. 40.
[ Bailii ]

 
 Rex (at the prosecution of Arthur Zadig) v Halliday; HL 1-May-1917 - [1917] UKHL 1; [1917] AC 260
 
Taylor v Attorney General of Queensland (1917) 23 CLR 457; [1917] HCA 31
29 Jun 1917

Barton J, Isaacs, Gavan Duffy, Rich and Powers JJ
Constitutional
(High Court of Australia) The 1908 Act provided that, when a bill passed by the Legislative Assembly in two successive sessions had in the same two sessions been rejected by the Legislative Council, it might be submitted by referendum to the electors, and, if affirmed by them, should be presented to the Governor for His Majesty's assent. Upon receiving such assent, the Bill was to become an Act of Parliament in the same manner as if passed by both Houses of Parliament, and notwithstanding any law to the contrary. Held: This was a valid and effective Act of Parliament by virtue of the power conferred upon the Legislature of Queensland by S.5 of the Colonial Laws Validity Act of 1865. It was further held that there was power to abolish the Legislative Council of Queensland by an Act passed by the Legislative Assembly and affirmed by the electors in accordance with the provisions of the 1908 Act. Barton J "The Constitution Act of 1867 provided for all laws passed under it to be enacted "by Her Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly in Parliament assembled", and that the constitution did not recognise the making of laws by any other authority: "It is also true that in general the legislation of a body created by and acting under a written charter or constitution is valid only so far as it conforms to the authority conferred by that instrument of government, and that therefore attempted legislation, merely at variance with the charter or constitution, cannot be held an effective law on the ground that the authority conferred by that instrument includes a power to alter or repeal any part of it, if the legislation questioned has to be preceded by a good exercise of such power; that is, if the charter or constitution has not antecedently been so altered within the authority given by that document itself. … Normally, therefore, in the absence of such a provision as s.5 of the Imperial Act, I should have been prepared to hold that the [1908 Act], which, though it professed to be an amendment of the Constitution Act of 1867, was merely, in view of its provisions, an Act at variance with the constitution, not preceded by a valid extension of the constitutional power, was therefore itself, as it stood, invalid. But in the present case the Imperial provision seems to me to take away the application of the principle I have stated to legislation of the kind which it authorises."
Queensland Parliamentary Bills Referendum Act of 1908
1 Citers

[ Austlii ]
 
Re the Initiative and Referendum Act [1919] AC 935
1919
PC
Viscount Ha;dane
Constitutional, Commonwealth
The Board heard a referral from the Manitoba government to the Court of King’s Bench for a ruling upon the question of whether the Manitoba Legislative Assembly had jurisdiction to enact a referendum act. Mathers CJ had decided that the legislature had such authority. The Court of Appeal overturned that decision. The parties took the matter directly to the Privy Council without going first to the Supreme Court of Canada. Held. The lieutenant Governor had no such power. Viscount Haldane ruled the legislation unconstitutional. The Act, which would permit an initiative voted upon by voters at large to become law if approved by a majority without passage through the legislature and without royal assent, was unconstitutional. A "legislature may not "create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence"
The scheme of the Constitution Act, 1867 was "not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head."
The Board stated (obiter) that while a legislature could delegate legislation to subordinate agencies: "it does not follow that it can create and endow with its own capacity a new legislative power not created by the British North America Act to which it owes it own existence."
Viscount Haldane expressed a reservation that the ability to legislate for the government of a territory does not extend to establishing a legislature for a self-governing territory armed with general legislative authority: "No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise."

 
Sellar v Highland Railway Co (No.1) [1919] UKHL 1; 1919 1 SLT 149; 1919 SC (HL) 19
24 Jan 1919
HL
Lord Buckmaster
Constitutional, Natural Justice
The House considered whether a judge should recuse himself in a case involving a company in which he owned shares.
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In The Matter of The Initiative and Referendum Act v Manitoba [1919] UKPC 60; [1919] AC 935
3 Jul 1919
PC

Constitutional
(Manitoba)
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Chester v Bateson [1920] 1 KB 829
1920

Darling J, Avory J
Constitutional
A Regulation brought in under the 1914 Act prohibited the bringing of possession proceedings against a munitions worker without the consent of the Minister. Held. The prohibition was unlawful. It was a grave invasion of the rights of the subjects and this could not be achieved by a departmental order. Avory J said: "In my opinion there is not to be found in the statute anything to authorize or justify a regulation having that result; and nothing less than express words in the statute taking away the right of the King’s subjects of access to the Courts of justice would authorize or justify it."
Defence of the Realm Consolidation Act 1914
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McCawley v The King [1920] AC 691
1920
PC
Lord Birkenhead
Constitutional
The Board was asked whether a Queensland statute authorising the Governor in Council to appoint a judge of the Court of Industrial Arbitration to hold office for seven years, was in fatal conflict with a provision of the 1859 Order in Council and a section of the Constitution Act 1867. Held: It was not, since the legislature of Queensland had power to enact the Queensland statute both under s.5 of the 1865 Act and under clause 22 of the Order in Council. Lord Birkenhead compared and contrasted controlled and uncontrolled constitutions: "… a constitution [is not] debarred from being reckoned as an uncontrolled constitution because it is not, like the British constitution, constituted by historic development, but finds its genesis in an originating document which may contain some conditions which cannot be altered except by the power which gave it birth. It is of the greatest importance to notice that where the constitution is uncontrolled the consequences of its freedom admit of no qualification whatever."
Colonial Laws Validity Act 1865 5
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 Attorney General v De Keyser's Royal Hotel Ltd; HL 10-May-1920 - [1920] AC 508; [1920] UKHL 1; [1920] All ER 80; (1920) 36 TLR 600; (1920) 122 LT 691; [1920] UKHL 757
 
Carlton Hotel Co v Lord Advocate 1921 SC 237
1921

Lord Dundas
Scotland, Constitutional
Lord Dundas: "This is a summary petition under section 91 of the Court of Session Act, 1868, for an order for specific performance of an alleged statutory duty. The remedy thus sought is peculiar and drastic. It has not, I believe, been frequently resorted to; I am aware of only one reported instance. Those who invoke this remedy must, I think, be careful to aver a clear statutory duty which those on whom its performance is incumbent have refused, or unduly delayed, to perform; and to state in precise terms the order which, by their prayer, is sought from the Court." and "Section 91 was, in my judgment, never intended to provide a medium for the expiscation of intricate and doubtful duties, but rather for the summary enforcement of clearly existing ones, the due performance of which is neglected."
Court of Session Act 1868 91
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Newcastle Breweries Ltd v The King [1920] KB 854
1921

Salter J
Constitutional
The court was asked to consider the validity of regulation 2B of the Realm Regulations made under section 1 of the 1914 Act. Held: The presumption against a statute authorising the expropriation of a subject's property without payment is even stronger in the context of delegated legislation. Absent a clear provision conferring power to make retrospective delegated legislation, the assumption of such a power offends the legality principle.
Salter J said: "I do not think that a regulation which takes away the subjects right to a judicial decision , or transfer the adjudication of his claim without his content, from a court of law to named arbitrators, could fairly be held to be a regulation fro securing the public safety and the defence of the realm, or a regulation designed to prevent the successful prosecution of the war being endangered within the meaning of these words in the defence of the realm consolidation Act, 1914".
Defence of the Realm Consolidation Act 1914 1
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 Attorney-General v Wilts United Dairies Ltd; CA 1921 - (1921) 37 TLR 884

 
 Attorney-General v Wilts United Dairies Ltd; HL 1922 - (1922) 38 TLR 781
 
Viscountess Rhondda's Claim [1922] 2 AC 339
1922
HL
Viscount Haldane, Lord Birkenhead LC
Litigation Practice, Constitutional, Discrimination
(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act. Held: It is incorrect for a court to draw conclusions from such elements of the Parliamentary history of the legislation as the proposal and rejection of amendments. It is the sole right of the Committee to decide who was entitled to receive the Writ of Summons and Lord Lyndhurst said that if a person is entitled to a writ, but the Crown does not issue one, then his remedy is to petition the House.
Lord Birkenhead LC said: "The rule that the words of an instrument shall be taken most strictly against the party employing them - verba chartarum fortius accipiuntur contra proferentem - does not apply to the Crown such a grant is construed most strictly against the grantee and most beneficially for the Crown, so that nothing will pass to the grantee but by clear and express words." It was the duty of the Committee for Privileges to consider whether she was entitled to receive a Writ of Summons: "The writ is not to be issued capriciously or withheld capriciously at the pleasure of the Sovereign or of this House. It is to be issued, or withheld, according to the law relating to the matter, and if, under that law, it appears that there is a debt of justice to the petitioner in that matter, the writ will issue and, if not, it cannot issue."
Lord Lyndhurst said: "If a Writ of Summons is improperly withheld, your Lordships can insist upon its being issued. You may address the Crown for that purpose if you think proper. If that address to the Crown is unavailing, there is a remedy that in a remarkable case has been resorted to and which was effectual to attain its object. The Peers in Parliament, in that case, refused to proceed to business until the Writ of Summons was issued and until the House was properly constituted, and the historian who records this fact says that the means adopted were so effectual that the King was induced to issue the Writ of Summons and that the abuse of which they complained never occurred again. That is a remedy when the Writ of Summons is withheld. On the other hand, when a party has obtruded himself upon the House in which he has no right to sit, the remedy is equally plain. It is your duty to direct your Officers to refuse to administer the oaths, or allow the party to take his seat."
Sex Disqualification (Removal) Act 1919
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Alexander E Hall and Co v Mackenna [1923] IR 402
1923
PC
Viscount Haldane
Ireland, Constitutional
Viscount Haldane discussed the status of the Privy Council: "The Judicial Committee of the Privy Council is not an English body in any exclusive sense. It is no more an English body than it is an Indian body, or a Canadian body, or a South African body, or, for the future, an Irish Free State body . . I mention that for the purpose of bringing out the fact that the Judicial Committee of the Privy Council is not a body, strictly speaking, with any location. The Sovereign is everywhere throughout the Empire in the contemplation of the law."
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Secretary of State for Home Affairs v O'Brien [1923] AC 603
1923
HL
Lord Birkenhead, Lord Atkinson
Litigation Practice, Constitutional
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in the Irish Free State. He had been arrested in London and interned in Ireland, but the appellant had given assurances to the House of Commons that he could request and cahieve his return. Held: The appeal was dismissed on jurisdictional grounds.
A writ of Habeas Corpus is perhaps the most important writ known to the constitutional law of England affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty third year of Edward I. It has through the ages been jealously maintained by the courts of law as a check upon the illegal usurpation of power by the executive at the cost of liege.
Lord Atkinson said that a writ of habeas corpus: "operates with coercive force upon the Home Secretary to compel him to produce in Court the body of the respondent. If the Executive of the Free State adhere to the arrangement made with him he can with its aid discharge the obligation thus placed upon him. If the Irish Executive should fail to help him he would be placed in a very serious position. Unless this Executive breaks what has been styled its bargain with the Home Secretary he had, in effect, the respondent under his power and control. It would be rather unfair to this Executive to assume gratuitously beforehand that it would not keep the bargain made with it, simply because that bargain was not enforceable at law."
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 Attorney General for Ontario v Attorney General for Canada; PC 1924 - [1925] AC 750; 94 LJPC 132; (1924) 4 DLR 520

 
 Prager v Blatspiel, Stamp and Heacock Ltd; 1924 - [1924] 1 KB 566

 
 Rex v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd; 1924 - [1924] 1 KB 171

 
 Attorney-General v Great Southern and Western Rly Co of Ireland; HL 1925 - [1925] AC 754

 
 The Toronto Electric Commissioners v Snider and Others; PC 20-Jan-1925 - [1925] UKPC 2

 
 The Fagernes; CA 1927 - [1927] P 311
 
Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343; [1927] UKPC 2
18 Jan 1927
PC
Lord Warrington, Lord Darling, Viscont Haldane, Viscount Finlay, Viscount Dunedin
Constitutional
An Act removing the right of appeal to the Privy Council was held not to affect an appeal in litigation pending when the Act was passed and decided after its passing, on the ground that (Lord Warrington) '[t]o deprive a suitor in pending litigation of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure'. And "In considering the construction and effect of this Act the Board is guided by the well known principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms" and "When we are seeking the intention of Parliament that may appear from express words but it may also appear by irresistible inference from the statute read as a whole. But I would agree that, if there is a reasonable doubt, the subject should be given the benefit of the doubt."
A statute should not be held to take away property rights without compensation unless the intention to do so is expressed in terms which are clear and unambiguous.
Lord MacNaghten: "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
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Great Western Railway Co v Mostyn (Owners) [1928] AC 57; 97 LJP8; 138 LT 403
1928
HL
Viscount Haldane, Viscount Dunedin
Transport, Constitutional
The House considered the application of a case precedent where they had been uunable to extract a binding ratio decidendi. Held: A ratio decidendi cannot be created by aggregating views of minority judges and views of majority judges to secure a numerical majority on a particular issue. Viscount Dunedin (dissenting) said as to the ratio of the case referred to: "Now, when any tribunal is bound by the judgment of another Court, either superior or co-ordinate, it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear - as is the case in most instances - what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding. But it is not clear, then I do not think it is part of the tribunal's duty to spell out with great difficulty a ratio decidendi in order to be bound by it. That is what the Court of Appeal has done here. With great hesitation they have added the opinion of Lord Hatherley to that of Lord Cairns and then, with still greater difficulty, that of Lord Blackburn, and so have secured what they think was a majority in favour of Lord Cairns's very clear view. I do not think that the respect which they hold and have expressed for the judgments of your Lordships' House compelled them to go through this difficult and most unsatisfactory performance." and "[Y]ou cannot extract from the judgments in Wear v Adamson such a ratio decidendi as is binding. That, however, is far from wiping Wear v Adamson off the slate. It remains for two purposes. First, for the judgment itself and, second, for the opinions of the noble Lords, which are entitled to the greatest respect. Now, the judgment is binding. What, therefore, I think is our duty on this occasion is to consider the statute for ourselves in the light of the opinions, diverging as they are, and to give an interpretation; but that interpretation must necessarily be one which would not, if it applied to the facts of Wear v Adamson, lead to a different result."
Harbours, Docks and Piers Clauses Act 1847 74
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Edwards and Others v The Attorney General of Canada Appeal No. 121 of 1928; [1930] AC 124; [1929] UKPC 86
18 Oct 1929
PC
Lord Sankey LC
Commonwealth, Constitutional
(Canada) A constitutional Act act should not be interpreted narrowly or technically. Rights in conventions, treaties and like instruments are interpreted like a "living tree capable of growth and expansion within its natural limits." (Lord Sankey LC), and "Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared."
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