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Sunday, June 13, 2010

Presumption against infringement of Fundamental rights

The ouster of Courts cannot be presumed by implication only.Parliament should use appropriate words and that also should be plain and explicit if the fundamental rights are bing taken away.It was what was observed by the House of Lords:
Ultra vires and mala fides are, prima facie, matters for the Courts. If the jurisdiction of the Courts is to be ousted it must be done by plain words. A good example of ultra vires came before the Courts while this appeal was being argued. The Act of 1946 provides for a special parliamentary procedure if the land covered by the Order is, inter alia, a common or open space. The local authority and the Minister had, bona fide, proceeded on the basis that the land was not a common or open space and had not, therefore, operated the special procedure. By the time the case came on the Minister conceded that the land covered was an open space and the Order was quashed (Richardson v. Minister of Housing and Local Government, Times newspaper, February 24, 1956). Another example is White and Collins v. Minister of Health [1939] 2 K.B. 838. There was no suggestion of bad faith. Mala fides is a phrase often used in relation to the exercise of statutory powers. It has never been precisely defined as its effects have happily remained mainly in the region of hypothetical cases. It covers fraud or corruption. As the Respondents have moved before the bad faith has been particularised, one must assume the worst.

It has been said that bad faith is an example of ultra vires, and observations to this effect are relied on by the Respondents in support of their submission that the words " not empowered to be granted " in paragraph 15 of Part IV of the First Schedule to the Act cover cases where fraud or corruption is relied on, although on the face of it there is no irregularity. The following passage from Warrington, L.J., as he then was, is perhaps the most favourable to this argument. (Short v. Poole Corporation [1926] 1 Ch. 66 at p. 91.)

" My view then is that the only case in which the Court can interfere with an act of a public body which is, on the face of it, regular and within its powers, is when it is proved to be in fact ultra vires, and that the  references in the judgments in the several cases cited in argument to bad  faith, corruption, alien and irrelevant motives, collateral and indirect objects,   and so forth, are merely intended when properly understood as examples  of matters which if proved to exist might establish the ultra vires character  of the act in question." This way of describing the effect of bad faith should not be used to blur the distinction between an ultra vires act done bona fide and an act on the face of it regular but which will be held to be null and void if mala fides is discovered and brought before the Court. The division in law is clear and deep. No party would be allowed to raise fraud under an allegation of ultra vires  simpliciter. 
In Demetriades v. Glasgow Corporation [1951] 1 A.E.R. 457 the plaintiff complained of acts done on his land after requisition. He alleged inter alia that trees had been unlawfully cut. If there had been mala fides the cutting would, as I follow it, have been unlawful, but the House would not consider the possibility of bad faith in the absence of an express averment. This is stated by Lord Normand at the end of his Opinion. My noble and learned friend, Lord Morton of Henryton. at p. 461, said this: "The position would be  different if there were any allegation of fact that the competent authority.  through his agents the respondents, had acted in bad faith and with some  ulterior motive in carrying out this work on the trees. The truth or  falsity of such an allegation could be investigated by a court of law ".
But no such investigation could take place in a case in which there was a claim for a declaration that the cutting had been unlawful. In Carltona, Ltd. v. Commissioners of Works and Others (19431 2 A.E R. 560 the writ claimed a declaration that the Commissioners of Works were not entitled to take possession of the plaintiffs' premises and that a notice on which the Commissioners relied was invalid. Lord Greene, M.R., held bad faith could not be raised under a writ in this form. The words of paragraph 15 are plainly appropriate to ultra vires in the ordinary sense. They do not in their ordinary meaning, in my opinion, cover Orders which " on the face of it" are proper and within the powers of the Act, but which are challengeable on the ground of bad faith. The wording of the paragraph itself supports this view. If mala fides is within the paragraph it must be within the earlier words " is not empowered to be granted under this Act". 

These words do not apply to a certificate under Part III. If the paragraph was to cover mala fides it would have covered it in relation to a certificate as well as to an Order. It has not done so.
This construction is strengthened by the context. The jurisdiction of the Court under paragraph 15 is ousted after six weeks. If Parliament had intended that this should apply in the case of a person defrauded it would have made it plain, and not left it to be derived from a doubtful syllogism which would certainly not occur to a layman and would not, I think, occur ordinarily to a lawyer unless he happened to have had recently to familiarise himself with passages such as that I have cited from Lord Warrington. The limited right under paragraph 15, therefore, does not apply to applications based on bad faith. Pausing there, the victim of mala fides would have his ordinary right of resort to the Courts. It is said, however, that paragraph  takes away this right. In other words, Parliament, without ever using words which would suggest that fraud was being dealt with, has deprived a victim of fraud of all right of resort to the courts while leaving the victim of a bona fide breach of a regulation with such a right. If Parliament has done this it could only be by inadvertence. The two paragraphs fall to be construed together. Mala fides being, in my opinion, clearly excluded from paragraph 15, it should not, I think, be regarded as within the general words of paragraph 16. Construing general words as not covering fraud is accepted as right in many contexts. This seems to me an appropriate context for that principle. The Act, having provided machinery for access to the Courts in cases of ultra vires, cannot have intended to exclude altogether a person defrauded. General words, therefore, should not be construed as effecting such an  exclusion.  The Respondents sought to rely on the word " whatsoever ".

It is a word which in certain contexts may bring comfort to those who seek to include fraud under general words. Here it is applied, not to the grounds of challenge, but to the legal proceedings. Orders of this kind may be challenged in various ways, by injunction, by prerogative writ or the procedure now substituted, or, as here, by an ordinary writ. The word " whatsoever " is apt to cover this multiplicity.[per Lord Somervell of Harrow]

 Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (26 March 1956) 
URL: http://www.bailii.org/uk/cases/UKHL/1956/2.html 
Cite as: [1956] UKHL 2, [1956] AC 736

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