Ten Minutes To Decide
| Author | S. Prevezer |
| Published date | 01 May 1960 |
| Date | 01 May 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00602.x |
806
THE
MODERN
LAW
REVIEW
VOL.
28
of
“
property
”
in contexts other than those of planning legislation.
Lord Simonds’s
“
ordinary signification
”
test suggests a restriction
to the right of ownership in a material object. But, really, we have
got beyond the three-acres-and-a-cow era when people could see
property only in the form of tangible land
and
tangible chattels.
A
constitutional prohibition against confiscatory legislation is
mocked if
no
account is to
be
taken
of
the newer forms of pro-
prietary interests which modern society has developed. What has
been called
“
site goodwill
”
and
‘‘
adherent goodwill
”
have been
recognised by the courts as proprietary interests, yet they are the
forms of property most likely to be taken in the course of planning
legislation.
On
that aspect of the case which really determined the decision
of the Court of Appeal in Northern Ireland-the unconstitutionality
of committing the test of reasonableness to the Ministry-the House
of
Lords decided that the view
of
the
Court
of
Appeal was erroneous.
Lord Radcliffe took the view that as
it
would have been
a’ntra
vires
the Parliament of Northern Ireland to have excluded compensation
for injurious af€ection in all cases,
it
could
not
be
ultra
vires
to
permit compensation in some cases according to the decision
of
the Ministry on reasonableness.
On
the other hand, Lord Simonds
approached it from the standpoint that the decision
on
reasonable-
ness was an administrative function, possibly involving questions
of policy, and that there was
no
theoretical objection to such a
function being committed to the executive, though any particular
exercise of that function might
be
attacked in the courts.
As
Lords Cohen and Keith were merely shouting general encourage-
ment to their noble brethren from the touchline we are left without
a majority reason for the holding
on
this aspect
of
the case.
In
conclusion
it
may be observed that the Members of the House
of Lords appeared to be unduly swayed by what they regarded as
the awful consequences of holding otherwise than they did.
In
fact, the consequences would not be
so
dreadful, for the prohibition
in section
5
(1)
is not one against taking property, but against
taking property without compensation. Once
it
is clear that the
proposed legislation will deprive the individual of a legitimate
economic interest which he has enjoyed there seems
no
reason in
point
of
justice why he should not be compensated.
F.
H.
NEWARK.
TEN
MINUTES
TO
DECIDE
MR.
Justice Stable’s statement to the jury in
McKenna’s
case that
it
would be kept for the night if
it
did not arrive at a conclusion
within ten minutes has been
so
strongly and widely criticised that
it hardly warrants any further comment. Yet, whilst recognising
1
Reported
sub
nom.
R.
v.
McKenna,
R.
v.
McKenno,
R.
v.
Busby
[1960]
1
All
E.R.
326;
[1960]
I;
W.L.R.
306.
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