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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
    1. Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.
    2. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    3. Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
    4. H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871
    5. British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165
    6. Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724
    7. Robertson v Minister of Pensions [1948] 2 All ER 767
    8. Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496
    9. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204
    10. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643
    11. Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720
    12. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724

CASSELS J:....The first issue to be decided is: What is the nature of this agreement? Is it a tenancy agreement or is it an agreement merely giving to the defendant leave and licence to be in occupation of this land? At first reading, the words and phrases in use, and, I think, unfortunately in use, in this document might easily lead one to regard it as a tenancy agreement. I find such words and phrases as: "The Minister agrees to let", "agrees to take" "the tenancy", "the rent", "additional rent", "during his tenancy", "good tenantable repair", "shall not assign or under-let" and "non-payment of rent". It almost seems as if the draftsman has left nothing out which could make it look more like a tenancy agreement. The Minister, of course, has only such powers as the regulation confers on him. He is not the owner of the land; he has no interest in the land; and, therefore, he cannot grant a lease. He merely has possession through the agricultural committee, under the regulation. He can only pass on what he has himself, namely, the use of the land....

I have to bear in mind that the powers of the Minister were brought into existence by the regulation. His powers are statutory. The power to take possession is not a power to acquire ownership. Apart from possession, the Minister had no interest in the land which he could convey, and no lease the whole or part of which he could assign. He could only part with possession. He had statutory possession, and his only power was to make a contract for the statutory occupation or use of the land. The argument of the plaintiffs is that if, by the agreement of 24 October 1945, the Minister was granting a tenancy, then he was acting ultra vires. He could only act within his powers and part with what he had, and what he had was possession and nothing more.

It is further contended on behalf of the defendant that the Minister 'by the solemn Act of his entry into the said agreement is estopped from denying that he has vested in the defendant such a tenancy as aforesaid'. It may well be that, if it were a private individual who had entered into this contract, he would have been estopped from denying that it was a tenancy agreement, or, at any rate, would have been liable to an action for damages, but the Minister is a statutory and not an actual person and he can only perform the acts which he is empowered to perform. An ultra vires act is not the act of the Minister at all. In Ministry of Agriculture and Fisheries v Hunkin the present plaintiffs were suing one Hunkin for possession of a cottage and garden. The county court judge took the view that under the relevant Defence Regulations it was competent for the county agricultural committee, acting under the authorisation of the Minister and as a delegate of the Minister's own powers, to create the relationship of landlord and tenant between the Minister and the defendant. I think he said that the Rent Restrictions Acts protected Mr Hunkin. The Court of Appeal allowed the appeal against that decision, and in his judgment Lord Greene MR made certain observations which are certainly of value in the present case. Counsel for the defendant, the person in possession of the land possession of which was sought by the Ministry of Agriculture and Fisheries, disclaimed any intention of attempting to support the county court judge's judgment that the Minister had power under the regulations to create a tenancy and had in fact created it by the document in that case, but he took the point that the Minister was estopped from denying that the document did create a tenancy. On that the Master Of The Rolls said (referring to counsel for the defendant):

"He suggested, first of all, that even assuming, as he conceded, that the regulations gave no power to the Minister to create a tenancy, nevertheless the Minister was estopped from denying that the document in question did create a tenancy and, accordingly, the relationship must be regarded as one of landlord and tenant. There is, I think, a very short answer to that. Accepting...that the Minister had no power under the regulations to grant a tenancy, it is perfectly manifest to my mind that he could not by estoppel give himself such power. The power given to an authority under a statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by effecting an estoppel. That point, I think, can be shortly disposed of".

I have, therefore, come to the conclusion that this was an agreement for leave and licence, for the determination of which no notice is required, or, at most, only a reasonable notice according to the circumstances. Some comment has been made that this agreement discloses a considerable uncertainty. I do not know whether it does. The agreement by which the defendant was let into possession was specific as to the date for determination being 11 October next before the expiration of three years from the end of the war period as defined in the Agriculture (Miscellaneous War Provisions) Act, 1940, to which I have referred. I think that the plaintiff is entitled to judgment for possession.