Chester v Bateson  1 KB 829
At a Court of summary jurisdiction sitting in the petty sessional division of Lonsdale North in Lancashire a complaint was preferred by the appellant under the Small Tenements Recovery Act, 1838 , against the respondent for that the appellant did let to the respondent a dwelling-house in the district of North Lonsdale at the rent of 8l. 12s. per annum, and that the tenancy did expire on May 12, 1919, and that on July 12, 1919, the appellant duly served on the respondent a notice in writing of his intention to apply to recover possession of the tenement, and that notwithstanding the notice the respondent neglected to deliver up possession of the tenement.
Upon the hearing of the complaint, and without going into the merits, it was submitted on behalf of the respondent that as by an order of the Minister of Munitions, dated December 4, 1917, reg. 2 A (2.) of Defence of the Realm Regulations, was applied to the petty sessional division of Londsale North in which the premises in question were situate, there was a fatal defect in the proceedings which ousted the jurisdiction of the justices to issue their warrant in pursuance of the Act of 1838, namely, that it was essential that the appellant should before commencing the proceedings have obtained the consent of the Minister of Munitions to the commencement of the proceedings. By the consent of the parties the justices proceeded to try that question without hearing the complaint on its merits. The respondent was called and proved that he was employed in the shell shop at Messrs. Vickers, Ld., at Barrow-in-Furness, that he was engaged in checking the loading and unloading of shells, shell material and shell forgings, that he was responsible to the manager and that the manufacture of shells was then taking place. No consent of the Minister of Munitions to take the proceedings was put in by the appellant.
On behalf of the appellant it was contended, inter alia, that reg. 2 A (2.) was ultra vires the Defence of the Realm Consolidation Act, 1914 .
The justices were of opinion that the respondent was a workman employed in the work of manufacturing and producing war material; that reg. 2 A (2.) was not ultra vires; and that it was essential before the proceedings could be taken that the appellant should obtain the consent of the Minister of Munitions.
The question for the opinion of the Court was whether the justices came to a correct determination and decision in point of law.
DARLING J.: This case came before this Court on a case stated by the justices sitting for the petty sessional division of Lonsdale North in Lancashire and after the argument for the appellant, the respondent not being represented, we reserved judgment.
This case raises the question whether reg. 2 A (2.) goes beyond the authority by the statute 5 Geo. 5, c. 8 , confided to His Majesty in Council, to be exercised during the continuance of the present war for the defence of the realm. The words of that regulation are these:
'If as respects any area in which the work of manufacturing, producing, repairing, storing, or transporting war material is being carried on, the Minister of Munitions is of opinion that the ejectment from their dwellings of workmen employed in that work is calculated to impede, delay, or restrict that work, he may by order declare the area to be a special area for the purpose of this regulation. "Whilst the order remains in force no person shall, without the consent of the Minister of Munitions, take, or cause to be taken, any proceedings for the purpose of obtaining an order or decree for the recovery of possession of, or for the ejectment of a tenant of, any dwelling-house or other premises situate in the special area, being a house or premises in which any workman so employed is living, so long as the tenant continues duly to pay the rent and to observe the other conditions of the tenancy, other than any condition for the delivery up of possession. "If any person acts in contravention of this regulation he shall be guilty of an offence'.
The authority to make this regulation is to be found, if anywhere, in 5 Geo. 5, c. 8, s. 1, sub-s. 1, par. (e) in the words: "Otherwise to prevent assistance being given to the enemy or the successful prosecution of the war being endangered." It is objected that the regulation is bad because it forbids any person, without the consent of the Minister of Munitions, to take or cause to be taken any proceedings to recover possession of his own house, or to eject a tenant from it, where the tenant is employed in certain work connected with war material.
Mr. Langdon has contended that this regulation violates Magna Carta, where the King declares: "To no one will we sell, to no one will we refuse or delay right or justice." I could not hold the regulation to be bad on that ground, were there sufficient authority given by a statute of the realm to those by whom the regulation was made. Magna Carta has not remained untouched; and, like every other law of England, it is not condemned to that immunity from development or improvement which was attributed to the laws of the Medes and Persians. I found my judgment rather on the passage in Rex v. Halliday ( AC 260) where Lord Finlay says that Parliament may entrust great powers to His Majesty in Council, feeling certain that such powers will be reasonably exercised; and, further, on these words of Lord Atkinson in the same case: "It by no means follows, however, that if on the face of a regulation it enjoined or required something to be done which could not in any reasonable way aid in securing the public safety and the defence of the realm it would not be ultra virus and void. It is not necessary to decide this precise point on the present occasion, but I desire to hold myself free to deal with it when it arises." Here I think it does at last arise; and I ask myself whether it is a necessary, or even reasonable, way to aid in securing the public safety and the defence of the realm to give power to a Minister to forbid any person to institute any proceedings to recover possession of a house so long as a war worker is living in it.
The main question to be decided is whether the occupant is a workman so employed, and the regulation might have been so framed as to make this a good answer to the application for possession, still leaving that question to be decided by a Court of law. But the regulation as framed forbids the owner of the property access to all legal tribunals in regard to this matter. This might, of course, legally be done by Act of Parliament; but I think this extreme disability can be inflicted only by direct enactment of the Legislature itself, and that so grave an invasion of the rights of all subjects was not intended by the Legislature to be accomplished by a departmental order such as this one of the Minister of Munitions.....
It is to be observed that this regulation not only deprives the subject of his ordinary right to seek justice in the Courts of law, but provides that merely to resort there without the permission of the Minister of Munitions first had and obtained shall of itself be a summary offence, and so render the seeker after justice liable to imprisonment and fine. I allow that in stress of war we may rightly be obliged, as we should be ready, to forgo much of our liberty, but I hold that this elemental right of the subjects of the British Crown cannot be thus easily taken from them. Should we hold that the permit of a departmental official is a necessary condition precedent for a subject of the realm who would demand justice at the seat of judgment the people would be in that unhappy condition indicated, but not anticipated, by Montesquieu, in De l'Esprit des Lois, where he writes: "Les Anglais pour favoriser la liberté ont ôté toutes les puissances intermédiaires qui formoient leur monarchie. Ils ont bien raison de conserver cette liberté; s'ils venoient à la perdre, ils seroient un des peuples les plus esclaves de la terre." [Livre 2, c. 4.]....
SANKEY J: I agree. The short point involved in this case is whether regulation 2 A (2.) of the Defence of the Realm Regulations is invalid. That regulation purports to be made under the authority of the Defence of the Realm Consolidation Act, 1914 , passed on November 27 of that year, by s. 1 whereof His Majesty in Council has power "during the continuance of the present war to issue regulations for securing the public safety and the defence of the realm" and particularly a regulation designed to prevent "the successful prosecution of the war being endangered." In pursuance of those powers regulation 2 A (2.) was issued and I need not again read it.
The effect of this regulation is that in particular instances no person is entitled to take proceedings of the character described, without the consent of the Minister of Munitions. In my view the words in the statute relied upon as giving power to His Majesty to make this regulation do not enable him to do so, nor is there anything in the Act of 1914 which authorized the making of regulations forbidding access to the King's Courts. It is true that the power to make a regulation to prevent the successful prosecution of the war being endangered is of a wide and sweeping character, but I decline to hold that Parliament intended by these general words to give to the Executive the right to close any of the King's Courts against his subjects unless they obtained the sanction of a minister to resort thereto.
It might have been competent under the words of the statute, although I express no opinion on the point, to make regulations constituting the consent of the Minister of Munitions in a proper case, a condition precedent to the making of an order for the recovery of possession of, or for the ejectment of a tenant of, any dwelling-house or other premises of the character referred to. It was not, however, competent for His Majesty in Council to make a regulation enacting that a man who seeks the assistance of, or the protection of, the King's Courts should be exposed to fine and imprisonment for having done so. It would have been astonishing if Parliament had conferred such a power as that. See what would have happened in a doubtful case. A man believing in all good faith that he was entitled to bring proceedings finds he is wrong on the evidence, but the mere fact of his having brought them is to make him guilty of an offence and liable to fine or imprisonment. I am of opinion that the regulation so made is beyond the powers conferred by the Act of Parliament. I should be slow to hold that Parliament ever conferred such a power unless it expressed it in the clearest possible language, and should never hold that it was given indirectly by ambiguous regulations made in pursuance of any Act.