The New Public Corporations and The Law

Publication Date01 Oct 1947
DOIhttp://doi.org/10.1111/j.1468-2230.1947.tb00059.x
AuthorW. Friedmann
THE
NEW
PUBLIC
CORPORATIONS
AND
THE
LAW
(continued)
8.
THE LEGAL STATUS
OF
PUBLIC CORPORATIONS
1.
Corporate Character
SUBSTANTIALLY
similar provisions in all the Acts provide for the
establishment of the public corporation as
'
a body corporate
.
.
.
,
with perpetual succession and a common seal and power
to hold land without licence in mortmain
'.'
ZZ.
Legal Duties and Liabilities
.4
number of provisions indicate the legislative purpose of
putting the public corporations on substantially the same
footing as private companies. One series of provisions refers
to liability for taxes and other dues
:
'
Nothing in this Act shall
be deemed to exempt the Board from liability for any tax,
duty, rate, levy, or other charge whatsoever, whether general
or local
'.'
Another set
of
provisions stipulates full liability
of
the
public corporations in actions, proceedings or prosecutions,
and it removes them from the Public Authorities Protection
Act.
A
limited privilege is provided however, through the
reduction of the normal limitation period of six years,
(ss.
2
and
3,
Limitation Act,
1939)
to three years.
Only in the case of the Central Land Board is
it
provided
that its functions
'
shall be exercised on behalf
of
the Crown
'.
This presumably means that it partakes
of
privileges of the
Crown in respect
of
liabilities in contract, tort, etc. The
significance of this provision will be greatly lessened by the
enactment of the Crown Proceedings Bill which makes the
Crown generally liable in tort and contract. Variously worded
1
1.
S.
2,
Coal Industry Nationalisation Act.
2.
S.
2,
New Towns Act.
3,
S.
3,
Electricity Bill.
4.
S.
65,
Agriculture Bill.
;i.
S.
2,
Town
and Country Planning Bill.
6.
First Schedule to Transport Bill.
7.
Third Schedule
to
National Health Service Act.
8.
First Schedule to Civil Aviation Act,
8.
12.
2
Cf.
s.
6,
Civil Aviation Act;
s.
11,
Electricity Bill.
377
VOL.
10
25
378
MODERN
LAW
REVIEW
VOL.
10
provisions finally state that
'No
provision of this Act
conferring any power
or
imposing any duty
.
.
.
authorises the
disregard by the corporations of any rule of law whether having
effect by any virtue of enactment
or
otherwise
'.3
Another formula, more specifically referring to capacity,
is that
'
the authorisation conferred on the board by section
1
of this Act, whilst discharging them in the exercise and per-
formance of the functions therein mentioned from limitat ions
to which they might otherwise be subject arising from the law
relating to the capacity of statutory corporations, are not to
be construed as authorising disregard
of
any enactment
or
any
act
or
omission unlawful on any other ground
'.4
The purpose and effect of these provisions is far from
clear.
In
so
far as they presuppose that the ultra vires rule has, no
application to the public corporations, such an assump tion
is
probably erroneous (see below under
LO),
and the only real
meaning can be that the carrying out of the manifold public
functions entrusted to the public corporations does not
authorise any disregard of vested rights, or other protected
interests, except in
so
far as the Act specially authorises
it.
9.
THE
PUBLIC CORPORATION
AS
A
PUBLIC
AUTHORITY
Nothing illustrates the unique character and position of the
public corporation as much as the difficulty of its proper
classification. Three alternatives present themselves
:-
(a) In
so
far as all public corporations are, to
a
greater or
lesser degree, subject to ministerial directions and are inte-
grated in the general nationalisation policy, they might be
regarded as part of the Executive, as Departments of Govern-
ment.
(b)
On the other hand, the obvious policy of assimilating
the public corporation to private companies as regards legal
liability, auditing, etc., might suggest the conclusion that they
are essentially of the nature of commercial companies.
(c) Finally, they might be regarded as statutory public
authorities, similar to local authorities or special public authori-
ties. There is, however,
a
decisive difference, constitutionally
and legally, between such statutory public authorities and
the Government.'
Although the ministerial powers
of
appointment and direc-
J
E.g.,
a.
6
(a),
Civil Aviation Act.
4
%+inn
4
(4).
Cod
Induatrv
Nationalisation Act. Yet another formula is
I______
-
\_,,
-.~~
~
used
in
the
Trapsport Bill,
2
(5).
5
Cf. Robinson
:
Public
Authorities and Legal Liability
I,
p.
a2
et
seq.

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