Harper v Secretary of State for the Home Department

JurisdictionEngland & Wales
Judgment Date20 December 1954
Judgment citation (vLex)[1954] EWCA Civ J1220-4
CourtCourt of Appeal
Date20 December 1954
Richard Stephenson Marper
Plaintiff (Respondents)
The Secretary of State for the Home Department
Defendant (Appellant)

[1954] EWCA Civ J1220-4


The Master of the Rolls

(Sir Raymond Evershed),

Lord Justice Jenkins, and

Lord Justice Hodson.


In the Supreme Court of Judicature

Court of Appeal

THE ATTORNEY-GENERAL (Sir Reginald Manningham-Buller, Q. C., M. P.) and MR. NIGEL WARREN(instructed by the Treasury Solicitor) appeared on behalf of the Appellant (Defendant).

SIR ANDREW CLARK, Q. C., MR. J. V. NESBITT and MR. R. L. McEWEN (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Mr. Philip B. Dingle, Town Clerk, Manchester) appeared on behalf of the Respondents (Plaintiffs).


This case comes before us in very unusual circumstances, and it is right that I should first make clear as a matter of procedure what it is that we are being called upon to determine. The Writ in the action was issued I think last Friday, the Plaintiffs being two individuals, a Mr. Harper and Mr. Lord, who are electors at the moment in one of the Parliamentary Divisions of Manchester, The Defendant as described in the Writ is the Secretary of State for the Home Department, The relief sought in the Writ is, first, a declaration that the Report of the Boundary Commissioners dated 10th November 1954 and submitted to the Defendant, that is the Secretary of State, under the House of Commons (Redistribution of Scats) Act 1949 was not made in accordance with that Act, and was therefore not a Report as stated in that Act,. The Writ proceeded to seek a further declaration that the Defendant Secretary of State was not bound to submit and ought not to submit to Her Majesty in Council a Draft Order in Council as provided by the Act and then seeks an injunction.


The Plaintiffs moved, as I understand, my Brother Roxburgh on Friday morning for an ex parte injunction; and though the learned Judge, apprehending the seriousness of the matter, gave an opportunity so that the Defendant could be before him in the afternoon, it was not in fact practicable, as may well be understood, for the Defendant then to be represented by Counsel. The Judge accordingly dealt with the matter as an ex parte application. He made an Order ex parte restraining the Secretary of State until after Tuesday (that is tomorrow) or further Order, from presenting To Her Majesty in Council a Draft Order in Council as intimated in the endorsement to the Writ.


In the ordinary course the procedure would be, I do not doubt, that if the interval before the Motion came on to be heard in the ordinary way were substantial, and if at the same time the Defendant thought on any sufficient ground that the ex parteinjunction ought not to be continued, then he would apply to discharge the ex parte injunction. In this case, as I have intimated, the ex parte injunction only runs until tomorrow. It might therefore have been thought the more natural course to wait until tomorrow in order that the learned Judge might hear the Motion inter partes, make a decision, and then if either party were dissatisfied with that decision, there could be an appeal to this Court. But, as everybody knows, and through no fault or malice on anybody's part, this matter has come before the Court very late in the term, and the case being obviously one of substance and some urgency, to put it no higher, it has been thought proper on behalf of the Defendant Secretary of State to come to-day to this Court to appeal against the making of the injunction ex parte.


We are therefore only concerned with the question whether that ex parte injunction was rightly granted. I think it right to emphasise these procedural matters because the course which has been followed and which learned Counsel have both thought it right to pursue here is one which owes its existence, owes the fact of its having been followed, to the special circumstances, particularly as to time, in which the Court is now placed. I do not, however, forgot that it is only with the ex parte injunction that the Court is now concerned. Yet if we reach a conclusion that the ex parte injunction should not have been granted upon grounds which affect the declarations sought in the Writ, it is obvious that, as a practical matter, our decision is likely to govern what will hereafter occur on the hearing of the Motion tomorrow and I dare say of the action itself.


After that preamble I turn to some references to the Act of 1949 which is involved. But, first, it is plain that the form of the action is an unusual one. As I have said, the Defendant is the Secretary of State for the Home Department, and, as is apparent from the endorsement, what it is sought bythe Plaintiffs to achieve is an injunction to restrain the Secretary of State from presenting to Her Majesty in Council a Draft Order which has already received the approval of both Houses of Parliament. It is therefore obvious that the Court is concerned with matters which at any rate come somewhat near to touching upon the relative spheres of Parliament and the Courts. I shall have some thing later to say about the Defendant and the name by which he is sued, "Secretary of State for the Home Department"; but I will first recite the necessary parts of the 1949 Act.


It was an Act passed to replace an earlier Act, and as I follow it, to consolidate earlier enactments, Its long title is "An Act to consolidate the enactments which make permanent provision for the redistribution of seats at Parliamentary elections", etc. The first section established Boundary Commissions for the four parts of the United Kingdom of Great Britain and Northern Ireland, namely England, Scotland, Wales an Northern Ireland. After stating how these Commissions were to be constituted, section 2 provides: "Each Boundary Commission shall keep under review the representation in time House of Common of the part of the United Kingdom with which they are concerned and shall, in accordance with the next following sub-section, submit to the Secretary of State" — meaning thereby the Secretary of State for the Home Department — "reports with respect to the whole of that part of the United Kingdom cither" — and this is the alternative we are concerned with — "(a) showing the constituencies into which they recommend that it should be divided in order to give effect to the Rules set out in the Second Schedule to this Act; or", alternatively, and this has not arisen —"(b) stating that, in the opinion of the Commission, no alteration is required, I can pass over the next three sub-sections,and go to sub-section (5) of Section 2: "As soon as may be after a Boundary Commission have submitted a Report to the Secretary of State under this Act, he shall lay the Report before Parliament together, except in a case where the Report states that no alteration is required", etc., "with the draft of an Order in Council for giving effect, whether with or without modifications, to the recommendations contained in the Report."


Section 3, subsection (2), provides that "The draft of any Order in Council laid before Parliament by the Secretary of State under this Act for giving effect, whether with or without modifications, to the recommendations contained in the report of a Boundary Commission may make provision (a) for any matters which appear to him to be incidental thereto or consequential thereon", and there are certain other provisions, which I need not enumerate.


Then subsection (4) of Section 3 says: "If any such draft is approved by resolution of each House of Parliament, the Secretary of State shall submit it to His Majesty in Council".


Before I pass to the Second Schedule to give effect to the Rules in which, as will be recalled, Section 2 provides that the recommendations be directed, I pause to re-state this fact. In the present case, the Secretary of State, having received the report, to which I shall later advert, laid it before Parliament, together with a draft order in Council, and each of the Houses of Parliament approved that Order in Council. prima facie, therefore, the Secretary of State must now submit the draft Order in Council to Her Majesty. I have said that the case is, therefore, a striking one, coming near (at the least) to involving the privileges and powers of parliament; but let me say at once that the Courts have never been reluctant or afraid to exercise their powers where they are satisfied that such powers reside in the Courts, and that some one or more of the subjects of Her Majesty are in danger of finding their rights imperilled.


I come now to the Second Schedule, containing the Rules which are to be the guide of the Boundary Commission in making and presenting their reports. The Rules in the Second Schedule are described as "Rules for re-distribution of seats". The first is thus: "The number of constituencies in the several parts of the United Kingdom set out in the first column of thefollowing table shall be as stated respectively in the second column of that table". The first column is headed: "Part of the United Kingdom", and the second column, "No. of Constituencies". Then against "Great Britain" you find "not substantially greater or less than 613". Then: "Scotland … Not less than 71. Wales … Not less than 35, and Northern Ireland … 12". It is convenient to pause in order to say that (Wales having risen to the figure of 36) from the figure of 613 opposite "Great Britain" you should deduct the figure of 107, so that in considering the English representation you may say for practical purposes that the figure is not to be substantially greater nor less than 506.


Paragraph 2 says: "Every constituency shall return a single Member". Paragraph 3 relates to the City of London. Paragraph 4, or Rule, 4, opens with the words: "So far as is practicable having regard to the foregoing rules", and then there...

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