The applicant was German born but a naturalised Englishman who complained of having been interned by a regulation made under the 1914 Act. He said that the regulation was ultra vires.
Held: The appeal failed (Lord Shaw dissenting). The House upheld the regulation as being within the scope of the power given to the minister by the statute on the ground that the regulation was intra vires the Act there being no deeming provision.
Any order would require recommendation by the appropriate defence authority, and would be subject to representations made by a person affected.
Lord Shaw of Dunfermline said: ‘Whether the government has exceeded its statutory mandate is a question of ultra or intra vires such as that which is now being tried. In so far as the mandate has been exceeded, there lurk the elements of a transition to arbitrary government and therein of grave constitutional and public danger. The increasing crush of legislative effects and the convenience to the Executive of a refuge to the device of Orders in Council would increase that danger twofold were the judiciary to approach any such action by the government in a spirit of compliance rather than of independent scrutiny.’
Lord Finlay LC, Lord Shaw of Dunfermline
[1917] UKHL 1, [1917] AC 260
Bailii
Defence of the Realm Consolidation Act 1914, Defence of the Realm (Consolidation) Regulations 14B
England and Wales
Cited by:
Cited – A, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
Approved – Chester v Bateson 1920
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 . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – McEldowney v Forde HL 18-Jun-1969
The House was asked whether the Magistrates had properly dismissed a charge of membership of an unlawful organisation, namely a Republican club. The Magistrates had found that an unlawful club would only be such if it supported the absorption of . .
Lists of cited by and citing cases may be incomplete.
Constitutional
Leading Case
Updated: 02 November 2021; Ref: scu.265983